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- @079 CHAP ZZ
-
- ┌───────────────────────────────────┐
- │ PASSIVE ACTIVITY LOSS LIMITATIONS │
- └───────────────────────────────────┘
-
- As anyone who reads the newspapers knows by now, "passive
- activity" losses (i.e., tax shelters) have become an endan-
- gered species since the passage of the Tax Reform Act of
- 1986. In general terms, a so-called "passive activity" is
- one that involves the conduct of a trade or a business, or
- an investment activity, in which the taxpayer does not mat-
- erially participate.
-
- Rental activities of any type have been considered to be
- passive regardless of the taxpayer's material participation
- in the business (but certain short-term rental activities,
- such as hotel rooms, tuxedos, etc. where the average custo-
- mer uses the property for seven days or less are not consid-
- ered to be "rental" activities).
-
- In addition, beginning in 1994, certain taxpayers who devote
- more than half their time to one or more real estate trades
- or businesses will no longer have to treat losses from ren-
- tal real estate activities as "passive," but will be able
- to offset such losses against their other income in full. An
- individual will meet the eligibilty requirements if:
-
- . More than half of the personal services he or she per-
- forms are performed in real property trades or busines-
- ses (such as development, construction, rental, manage-
- ment, brokerage, etc.) in which he or she "materially
- participates"; and
-
- . He or she performs more than 750 hours of services dur-
- ing the tax year in real property trades or businesses
- in which he or she "materially participates."
-
- @IF159xx]Because your company is engaged in rental activities, it is
- @IF159xx]possible that the passive loss restrictions described below
- @IF159xx]could apply to @NAME.
- @IF159xx]
- @IF112xx]However, as long as your corporation is (as it appears) a
- @IF112xx]C corporation, but is not considered a "closely-held C corp-
- @IF112xx]oration," it may well be exempt from these loss limitations,
- @IF112xx]which could be very advantageous, from a tax-planning stand-
- @IF112xx]point, for @NAME.
- @IF112xx]
- @IF112xx]However, see the discussion in this program of "personal ser-
- @IF112xx]vice corporations," which ARE subject to passive loss rules.
- @IF160xx]Because your firm's business is @BUSTYPE,
- @IF160xx]the definition of "personal service corporation" probably
- @IF160xx]does not apply to @NAME, fortunately.
- @IF160xx]
- @IF161 ]Because your firm's business is @BUSTYPE,
- @IF161 ]the "personal service corporation" definition is likely to
- @IF161 ]apply to @NAME, unfortunately.
- @IF161 ]
- Under the tax law as it now stands, all of a taxpayer's in-
- come and losses go into 3 separate categories:
-
- . Active source income (such as salary, wages or
- income or loss from an "actively conducted"
- business);
-
- . Passive activity income or loss (as from a tax
- shelter, or from a rental property); and
-
- . Portfolio income and related expenses (interest,
- dividends, capital gains).
-
- Thus, part of the "tax game," if you have passive losses you
- are unable to use, is to find a way to generate net passive
- income. One way many small businesses have done this up
- till now is by leasing real or personal property to their
- corporation or partnership business, structured with a
- fairly low mortgage or no debt financing at all, so that
- the lease arrangement would generate substantial net passive
- income. However, the IRS has just turned the rules upside
- down, in early 1995, by modifying the passive activity tax
- regulations (Sec. 1.469). Under the new regulations, net
- income on rentals to any controlled entity will now general-
- ly be treated as NON-passive income, thus closing off this
- tax planning opportunity. Worse yet, if such a lease to a
- controlled business entity throws off losses (instead of
- net profits), the losses WILL be treated as passive.... It's
- the same old story: Heads, the IRS wins; tails, you lose!
-
- In general, net losses from passive activities for a tax-
- able year cannot be offset against other income, but must
- be carried over to future years to be offset against pas-
- sive income (if any). Similarly, net portfolio losses re-
- sulting from investment interest expense can't be offset
- against either of the other 2 categories. Only losses from
- active sources can be used to currently offset income from
- the other 2 categories, generally.
-
- Thus, if you are a passive investor in a partnership or an
- S corporation business that has net losses that are con-
- sidered passive activity losses, you must carry those
- losses forward to future tax years for an indefinite peri-
- od, and cannot use the losses until you generate net pas-
- sive income against which they can be offset, or else you
- sell or otherwise dispose of the investment in a way that
- permits you to recognize the deferred losses.
-
- For small businesses, perhaps the most important exception
- to these passive loss restrictions is the exception for up
- to $25,000 a year of losses from rental real estate, where
- the taxpayer is considered to "actively participate" in the
- rental activity. This allowable deduction phases out at
- the rate of $1 for every $2 that the taxpayer's adjusted
- gross income exceeds $100,000. Thus, no such deduction is
- allowed for rental losses if adjusted gross income is
- $150,000 or more. (Note that adjusted gross income for
- this purpose is recomputed without taking into account any
- passive losses, IRA deductions, or taxable Social Security
- benefits.)
-
- Only a natural person (not a corporation, trust, etc.) can
- qualify for the special $25,000 rental loss exception.
- Also, to qualify for such a current deduction of rental
- losses, the taxpayer must own at least a 10% interest (by
- value) in the property, such as a 10% interest in a real
- estate partnership. Thus, you can't obtain this loss by
- buying 0.000001% of a large public real estate partnership.
- In addition, you must "actively participate" in the activ-
- ity. This means only that you must make major management
- decisions about the property, such as hiring a management
- company to manage it, or by approving new tenants, setting
- rental terms, approving major expenditures, or the like.
-
- The passive loss restrictions apply not only to individual
- taxpayers, but also to "personal service corporations," in
- full. They also apply, but only to a limited extent, to
- certain other closely-held C corporations, which are al-
- lowed to offset passive losses against "net active income,"
- but not against portfolio income. C corporations that aren't
- "personal service corporations" or "closely-held C corpora-
- tions" aren't subject to passive loss restrictions at all.
-
- Finally, neither partnerships nor S corporations are sub-
- ject to the passive loss rules, but any passive losses
- they pass through to their partners or shareholders will be
- subject to the passive loss rules at the partner or share-
- holder level.
-
-