WSJ Tax article
House-Hoppers May Suffer Under New Tax Rules Housing Package Makes It Harder To Exclude Gains
AUGUST 6, 2008
By TOM HERMAN
Life is getting tougher for some people who own more than one home.
Part of the housing-stimulus package signed into law last week by President George W. Bush could reduce — though not eliminate — the appeal of a tax-saving strategy used by wealthy home-hoppers.
While the new law won’t affect the vast majority of the nation’s homeowners, it will likely affect some people planning to sell their primary residence, claim the full home-sale exclusion to pay little or no capital-gains taxes — and then move to a second or third home they’ve owned for some time, convert it into their primary residence, sell it and once again pay little or no capital-gains tax.
Under both the old and new law, most homeowners can sell their primary residence and exclude as much as $250,000 of the gain if they’re single, or as much as $500,000 if they’re married and filing jointly with their spouse. To qualify for the full exclusion, owners typically must have owned the home and used it as their primary residence for at least two of the five years prior to the sale.
But under the new law, which takes effect next year, many owners might not be eligible to claim the full exclusion on a vacation or rental home they convert to a primary residence.
Congressional staffers estimate the new restrictions will raise about $1.4 billion in revenue for the U.S. Treasury Department over the coming decade. The move was designed to help offset costs of other breaks in the new law and also plug what congressional staffers viewed as a major loophole in a law enacted in the late 1990s.
The new law “will certainly complicate tax returns” and tax planning for some people, says John Olivieri, a tax partner at the White & Case law firm in New York. It also “contains traps for the unwary,” he says.
Most people don’t have to worry about the new law since most don’t own multiple homes, and many who do will never convert theirs to a principal residence. Even if they did, they wouldn’t dream of moving and jumping through legal hoops just to save taxes — and their second or third home might not work well as their primary residence anyway. Also, with home prices in a deep slump, many homeowners probably don’t have large gains to shelter.
Even so, tax lawyers predict the new law probably will prompt some wealthy people who own several homes to rethink the home-hopper strategy. “I know one individual with four homes who had planned to convert each of his three vacation and resort properties to a principal residence” and sell each at varying intervals to take advantage of the full home-sale exclusion, thus paying little or no capital gains tax, says Linda Goold, tax counsel at the National Association of Realtors in Washington. “It won’t be as easily done now.”
Here’s a primer on the basics and a summary of the changes, along with an example of how it’s supposed to work:
The basics. When the law was changed in 1997, government officials said it would mean that most people who sell their primary residence don’t owe any federal capital-gains taxes. Even if you can’t meet the requirements for the full home-sale exclusion, you may still be able to claim a partial exclusion depending on how long you owned and lived in the home and why you sold it.
For example, you might be eligible for a partial exclusion if you had to sell because of a change in your place of employment, or for health reasons, or for certain “unforeseen circumstances,” such as the death of your spouse, says Bob D. Scharin, senior tax analyst at the tax and accounting business of Thomson Reuters.
As with so many other tax laws, there are important exceptions. For example, there are special rules for members of the uniformed services and the Foreign Service, and for certain employees of the intelligence community, such as the Central Intelligence Agency. Also, the exclusion doesn’t apply to the extent the gain is attributable to depreciation allowed for rental or business use of your principal home for periods after May 6, 1997.
These home-sale exclusion rules apply only when you sell your primary residence. But in the late 1990s, real-estate agents, developers and others discovered special benefits for home-hoppers: These owners could pay little or no capital-gains taxes by carefully timing which home they used as their primary residence and when they sold it.
For example, consider a married couple with several homes who had lived in their main home for two years or more. They typically could sell their primary residence, exclude as much as $500,000 of the gain from tax — and then move into a vacation home, make it their new primary residence, live in it two years or more, sell it and once again take advantage of the full $500,000 exclusion.
A new twist. Under the new law, you can’t exclude the gain from the sale of the home allocated to periods of “nonqualified use.” That typically refers to any period (after the end of 2008) when the property isn’t used by you, your spouse or former spouse as a principal residence, according to a congressional staff summary. Also, the new law is effective only for sales beginning next year.
Here’s an example: Suppose a married couple buys a home on Jan. 1 next year for $600,000, says Mr. Olivieri of White & Case. They plan to hold it as an investment. On Jan. 1, 2012 — three years later — they begin using it as their principal residence. They live there two years and sell it on Jan. 1, 2014 for $1.1 million, for a profit of $500,000.
Under the old law, they would have been able to exclude the entire $500,000 gain from their taxable income, Mr. Olivieri says. But under the new law, they could exclude only two-fifths of the gain, or $200,000, since the other three-fifths would be considered attributable to the three years the home wasn’t their principal residence, he says.
So what, if anything, should homeowners do? For starters, before buying a second home, consider consulting a tax professional, says White & Case’s Mr. Olivieri. He points out there are important exceptions to the new rules. It’s remarkably easy for people who aren’t experts and who rely solely on common sense to make costly mistakes.
For more details and examples of how the new law works, visit the Web site of Congress’s Joint Committee on Taxation (www.jct.gov) and look for publication JCX-63-08, dated July 23, 2008.
Many taxpayers who take the standard deduction get a new break.
The new housing law includes a property-tax deduction for people who claim the standard deduction instead of itemizing. They are allowed to claim an additional standard deduction for 2008 for the state and local property taxes they paid during the year — up to $1,000 for married couples filing jointly and $500 for other filers, says Bob Trinz, senior tax analyst at the Tax & Accounting business of Thomson Reuters.
If the actual amount of property taxes you paid is less than that, you can deduct only the amount you actually paid. Taxes written off as business deductions don’t count, Mr. Trinz says. This new deduction is available only for 2008.
Taxpayers most likely to benefit from it include “homeowners who have paid off their mortgage (and, therefore, no longer itemize interest payments) and lower-income homeowners (whose overall itemized deductions generally do not exceed their standard deduction),” according to a report by CCH, a Wolters Kluwer business.
About 63% of all the federal individual income-tax returns filed for 2006 claimed the standard deduction instead of itemizing, according to IRS preliminary data.