Hello clients and friends ! When I review the latest tax news, I try to find and write about items I believe some of my clients may find relevant to them. What caught my eye this last month was a recent Tax Court case involving someone that claimed they were a "real estate professional, and as such could deduct losses from their rental activity.
Some background on this topic: real estate rental activities are generally deemed "passive", or akin to investing activities such as owning stocks and bonds for long term appreciation purposes. Passive activities generally do not allow for the deductions of net losses from the activity.
One notable exception to this is that up to a $25,000 loss can generally be deducted for those who are an "active participant" in the activity and do not have too high of adjusted gross income. So of course, it is important to define what active participation is.
"Active participation" is fairly easy to meet, and just requires the taxpayer to be involved in in its management - things like approving tenants, deciding rental terms, and approving expenditures. What trips up most of my real estate rental clients is that their adjusted gross income is too high to be able to meet this exception, despite active participation. Therefore, they often turn to seeing if they can qualify for the benefits afforded to "real estate professionals".
A "real estate professional" broadly defined, is one that deals with real estate activities for a living, at least in part. More specifically all three of the following requirements must be met:
must have "material participation" in the real estate activities
more than 750 hours in the year is spent on the real estate activities
more than half of their time earning a living is spent on real estate activity "jobs"
The first two are fairly easy to meet, but I have always informed inquiring clients that if you have a full-time job doing something else, the third requirement is pretty impossible to meet. The Court has pretty much confirmed my position on this in Foradis, TC Summ. Op. 2024-13, 7/11/2024. The taxpayer in this case attempted to deduct $22,000 loss from their real estate rental activity. His income was too high to meet the $25,000 exception I wrote about above, so he claimed he was a real estate professional.
The taxpayer worked full-time in an unrelated job, while claiming he worked on the real estate activities for 2,500 hours. In order to meet the third requirement, it would have to be true that he worked at his fulltime job (2,000 hours) and also worked 2,500 hours on the real estate activities. This would mean that he spent about 85 hours a week on both work activities....all year round on average. The Court deemed this "implausible". I of course agree. As someone who has worked in the corporate world and has logged some 85 hour work weeks in my day, I can attest to the fact that this is not sustainable for any length of time.
The moral of the story is that the IRS will likely closely look at the claims of "real estate professional" when losses are deducted, and this case will surely be used as precedent when they decide on the validity of the claim.
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