Michael Gray, CPA's

Real Estate Tax Letter

December 11, 2013

© 2013 by Michael C. Gray
ISSN 1930-0387

A monthly report focusing on tax issues for the homeowner and real estate investor.

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Make your year-end planning appointment now.

Michael Gray will have very limited availability for the rest of 2013, so make your year-end planning appointment now. Call Dawn Siemer Monday, Wednesday or Friday at 408-918-3162.

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Does your group need a speaker?

We are seeking opportunities to speak before groups. Topics include recent tax developments, tax issues relating to real estate, how estate planning has changed recently, tax issues relating to alternative investments using retirement accounts, and marketing topics such as "How I created a public access television show broadcast on eleven Bay Area stations." To make arrangements, call Michael Gray at 408-918-3161.

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IRS issues final regulations for 3.8% net investment income surtax.

A 3.8% federal "Medicare" surtax on net investment income for high income (Modified AGI over $250,000 for married persons filing joint returns, $200,000 for singles) taxpayers was enacted as part of Health Care Reform legislation in 2010 and became effective January 1, 2013. Proposed regulations explaining the tax were issued during December 2012 and proposed Form 8814 has been issued by the IRS without instructions.

The IRS issued final regulations on November 26, 2013. The regulations aren't effective until January 1, 2014.

The details of the tax and the regulations are too complex for me to explain here. You really have to consult with a tax advisor to determine how the rules apply for your situation.

A highlight in the IRS's explanation is a "real estate professional" won't automatically qualify net rental income as business income exempt from the tax. The IRS has created a 500-hour safe harbor test to meet the trade or business requirement. See your advisor for details.

The IRS removed the rules for sale of an interest in a partnership or S corporation from the final regulations and issued new guidelines in proposed regulations. The new guidelines look to the passive activity rules for classifying gains. More details were added relating to liquidating distributions from partnerships, such as payments to retiring partners.

(T.D. 9644, November 26, 2013, REG-130843-13, December 2, 2013.)

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IRS letter about cancellation of debt gives questionable comfort.

In response to a request by California Senator Barbara Boxer, the IRS Chief Counsel's office issued a letter (dated September 19, 2013) stating that the debt cancellation for a California principal residence is a cancellation for a non-recourse debt, because when the lender agrees to the short sale, the lender is prohibited from taking additional collection action. This conclusion is based on an anti-deficiency provision adopted by California in California Code of Civil Procedure Section 580e during 2011.A

The debt cancellation for a non-recourse note in a short sale is added to the sale proceeds and not treated as cancellation of debt income, which can sometimes be favorable for the taxpayer.

A publisher and some tax advisors have been citing this letter as "gospel" for not reporting this item as cancellation of debt income.

Since the letter hasn't been published as a Revenue Ruling by the IRS, we question whether it can be cited and relied upon as substantial authority in claiming this conclusion.

We think the IRS may have misinterpreted the facts in issuing this letter, and that an IRS agent could take a different position if a tax return is audited.

For a recourse mortgage, the lender has a choice up to the time of the cancellation to continue the collection action. The ability to continue the debt collection option is extinguished simultaneously with and as a consequence of the approval of the short sale and the debt cancellation. The remedy is at the lender's consent.

If you rely on this letter to avoid having the cancellation of debt reported as such on your income tax return, we recommend at least disclosing the reasoning of the position.

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More valuation information to be required for self-directed IRAs.

The IRS has announced that new information reporting requirements will apply for IRA investments with no readily available fair market value. The details will be included in the instructions for 2014 Form 5498, to be issued sometime this month. The IRS may be giving more audit attention to self-directed IRAs. The fair market value information on Form 5498 is used to compute the annual required minimum distribution for IRA accounts.

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Payment of compensation to IRA owner by corporation owned by the IRA was a prohibited transaction.

The Tax Court, in a memorandum decision, recently made a ruling that may hurt a lot of people with self-directed IRAs. In this case, an individual made an investment using his IRA in a 98% ownership interest in an LLC doing business as a used car business. The LLC elected to be treated as a regular corporation. The LLC paid a small salary to the IRA owner for his services as general manager of the used car business.

The Tax Court ruled that the payment of compensation to the IRA owner was a prohibited transaction. The IRA owner was a fiduciary, ineligible to receive compensation from the IRA. Despite the separate status of the corporation for tax purposes, it was controlled by the IRA and by the owner of the IRA, and so its action of paying compensation was attributed to the IRA.

Since these were prohibited transactions, the IRA was treated as distributed at the beginning of the year that compensation was first paid and added to the IRA owner's taxable income. The 10% early distribution penalty and an accuracy-related penalty were also assessed.

A taxpayer in a situation like this should consider applying to the Department of Labor for a waiver from the prohibited transaction rules.

This ruling may not be the final word for this case. The taxpayer might appeal the ruling.

(Ellis v. Commissioner, T.C. Memo. 2013-245, October 29, 2013.)

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Sign up for health insurance by December 23, 2013 for coverage on January 1, 2014.

Although federal penalties won't apply provided you enroll by March 31, 2014, you must enroll by December 23, 2013 to be covered on January 1, 2014. If you change coverage after January 1, 2014, you might have two deductibles for 2014. See your health insurance consultant for details.

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Fourth-quarter calendar year corporate estimated tax payment is due December 16.

The final 2013 estimated tax payment for calendar-year corporations is due December 16, 2013. Not all corporations can base their federal estimated tax payments on the previous year's income tax return. For example, new corporations and corporations that had no tax liability for the previous year must compute their estimated tax using the current year's facts. See your tax advisor for assistance.

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Fourth quarter estimated tax payment for non-corporate taxpayers is due January 15.

The final estimated tax payment for individuals and calendar-year estates and trusts is due January 15, 2014. Remember California taxpayers with taxable income of $1 million or more must pay their estimated taxes using the current year's facts. California passed a retroactive tax increase in the last election. There is no penalty for not paying the additional tax with your 2013 estimated tax payments, but you might want to do it for a deduction on your 2013 federal income tax return. Watch the alternative minimum tax. See your tax advisor.

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Watch FUTA adjustment on year-end report.

California, among other states, has a cutback in its state credit for federal unemployment taxes. That means additional payments of up to $63 per employee will be due with Form 940. Be sure this adjustment is done with your year-end report for 2013.

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Calendar year accrual basis corporations should pay related parties by December 31.

In order to currently deduct expenses due to certain related persons, accrual-basis corporations must pay them by the year-end. These include wages, bonuses, interest expense, rent, etc. Be sure to review the status of these items with your tax advisor by December 31.

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Estates and trusts should plan distributions.

The increase in the maximum federal income tax rate to 39.6% and the 3.8% tax on net investment income hit estates and trusts especially hard. They apply when the undistributed trust income exceeds $11,950. If possible, the income of the estate or trust should be distributed to beneficiaries before the year-end, since the threshold for these taxes is much higher for individuals. (The income of some trusts is automatically considered distributed. See your tax advisor.) An election is also available to treat distributions made during the first 65 days of the following year (for example, January 31, 2014) as distributed for a taxable year (for example 2013).

The beneficiaries should be involved in this decision and be informed about the additional income to be reported on their income tax returns (in writing) and to avoid unpleasant surprises.

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Seniors, remember to take your required minimum distributions.

Generally when a participant in a retirement plan or an IRA reaches age 70 ½, minimum distributions are required to be made by December 31 each year. The distributions are also required to be made for inherited accounts. Roth accounts are excluded from this rule during the original owner's lifetime. See your tax advisor for details.

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Remember to "reset" payroll on January 1.

Software providers will issue updates including the new payroll tax tables as of January 1, 2013. Be sure you have installed those updates before processing your first payroll for 2013.

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Should you make additional tax payments before December 31?

State estimated tax payments and early property tax payments made by December 31 are generally tax deductible for the regular tax. However, many people are finding they are subject to the alternative minimum tax. Deductions for taxes (and miscellaneous itemized deductions) aren't allowed for the alternative minimum tax, so there could be no benefit for a tax prepayment. A tax advisor can project your tax picture to determine if the AMT will apply. Turbo Tax and other tax preparation software can also be used to make the computations.

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Remember de minimus election requirement applies January 1.

Final regulations for repair expenses and capitalization include a new election to currently deduct small expenditures when the taxpayer doesn't have an applicable (audited) financial statement. Items up to $500 may be currently deducted, effective for amounts paid or incurred for tangible property after January 1, 2014, for taxable years beginning on or after January 1, 2014. The election doesn't apply for inventoriable costs.

Among other requirements, in order to qualify for the current deduction: at the beginning of the taxable year, the taxpayer must have accounting procedures treating as an expense for non-tax purposes - (1) amounts paid for property costing less than a specified dollar amount; or (2) amounts paid for property with an economic useful life of 12 months or less. The taxpayer must also treat the amount paid for the property as an expense on its books and records in accordance with the accounting procedures. The amount paid for the property may not exceed $500 per invoice or per item, as substantiated by the invoice.

Note the de minimus election will be made each year on the income tax return for the business.

In order to be in position to make the election for 2014, you must have the accounting policy in place by December 31, 2013 and implement that policy in your accounting throughout 2014.

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Financial Insider Weekly broadcast schedule for December and January.

Financial Insider Weekly is broadcast in San Jose and Campbell on Fridays at 8:00 p.m., Pacific Time. You can watch it on Comcast channel 15 for San Jose and Campbell. The show is broadcast as streaming video at the same time at www.creatvsj.org.

Here are the scheduled interviews for December and January:

December 13, 2013, Greg Carpenter, BTI Group Mergers & Acquisitions, "Buying a business"
December 20, 2013, attorney James V. Quillinan, Hopkins & Carley, "Should a family trust be terminated considering recent tax law changes?"
December 27, 2013, Peter Moss, Wymac Capital, Inc., "Mortgage market developments"
January 3, 2014, Don Pollard, CLU, Advanced Professionals, "How Health Care Reform is progressing for individuals"
January 10, 2014, Hilary Martin, CFP®, The Family Wealth Consulting Group, "Planned saving to reach your financial goals"
January 17, 2014, Lori Greymont, CEO, Summit Assets Group, "Residential real estate investing in Atlanta, Georgia and Birmingham, Alabama"
January 24, 2014, Lori Greymont, CEO, Summit Assets Group, "Different ways to invest in real estate"
January 31, 2014, Raymond Sheffield, attorney at law, Sheffield Law Office, "Charitable remainder trusts"

Financial Insider Weekly is also broadcast as follows:

Back episodes available at https://www.youtube.com/user/financialinsiderweek.

Let me know any ideas that you have for topics or guests. Guests will usually have to be located in or near the Silicon Valley in California.

Hope you can watch or record the show. Please tell your friends about it!

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Michael Gray regrets he can no longer personally answer email questions. He will answer selected questions in this newsletter.

For your questions about dependent exemptions, see IRS Publication 501 at www.irs.gov.

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Follow me on Social Media!

Want to see new episodes of Financial Insider Weekly as soon as they're posted on Youtube? Like to see Michael Gray's blog posts as soon as they're live? We post them (and more) on social media!

If you enjoy Twitter, please follow me at www.twitter.com/michaelgraycpa. I would especially appreciate retweets of our messages announcing episodes of Financial Insider Weekly.

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Check out my blog.

I have also started a blog at michaelgraycpa.com. Check it out!

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Michael Gray, CPA
2482 Wooding Ct.
San Jose, CA 95128
(408) 918-3162
FAX: (408) 938-0610
Hours: 8am - 5pm PDT Monday - Friday

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