from Local Attorney, Michael H. Wasserman

Wednesday, March 5, 2008


A lot of attention these days is being focused on the struggles many, many people are enduring selling real estate at a loss, whether the result of mortgage woes or declining market prices, or both. Deservedly so. This is a big problem. This is reflected in a significant number of the contracts I am working on right now; short sales, properties in foreclosure; post-foreclosure bank sales; sellers paying money at closing to cover liabilities in order to sell. I am helping clients on all sides of these types of deals. Not a happy time at all for these sellers.

But still and all, many sellers are profiting handsomely when their deals close. And when they profit, the tax man takes interest. Fortunately, the Internal Revenue Code provides two very powerful protections for sellers. And now, as of March 10, there will be a significant expansion of one, to benefit some vacation property owners.

The Section 121, Principal Residence Exclusion, shelters up to $500,000 of capital gains on a Primary Residence, provided that certain guidelines are met.

Section 1031, delays capital gain liabilities on Investment Properties when taxpayers swap or exchange one investment property for another. Again, certain (strict) guidelines must be followed.

But what about vacation / second homes? Since they aren't principal residences, they don't qualify for section 121 treatment. But they aren't really "pure" investments either, or at least so sayeth the IRS. Revenue has historically opposed the use of 1031 exchanges, arguing that personal use and enjoyment negates the investment property requirements of section 1031.

The IRS position was most recently successful in a tax court case titled "Moore v. Commissioner." That decision however described several consideration that the Tax Court used to decide whether or not this is a qualifying investment property.

And, as a result, the IRS has actually spelled out the circumstances in which 1031 exchanges will work for some vacation home-owners; Revenue Procedure 2008-16.

The IRS now recognizes that even if you occasionally use your second home for personal use, you still might be able to utilize a 1031 swap when it is time to sell. To do so, you must be able to satisfy these "safe harbour" requirements:

Both the "old" and "new" properties must meet

  1. A Two Year "Ownership" test. (you have to own them for at least 24 months before the exchange); and
  2. A "Use" Test for both properties for two years. For each of the prior two 12-month periods, the properties must be either (i) rented out at fair market rates for 14 or more days and (ii) not used for personal use for more than either 14 days or 10% of the number of days that it was actually rented - whichever is greater. The same terms must apply for the new place too.
There are other considerations too, but this is a land mark change as it really opens up significant tax relief to anyone who wants to use the lakeside summer shack or ski town villa every once in a while.

Section 1031 exchanges are tricky matters. No one should try this alone. Seek out a reputable 1031 intermediary and get yourself competent legal and tax advice first.