04/14/2022
The tax trap of converting your primary residence into a rental property
Many people, and certainly most realtors, are aware of a tax law that allows you to exclude $250,000 ($500,000 for married couples) of gain from the sale of your personal residence, as long as you meet the requirement of living in the house for at least two out of the last five years from the date of the sale.
And this is indeed an awesome part of the Tax Code (IRC §121). But what many people, including realtors, don’t know is that the rules of §121 are much more complex than the simple “two-out-of-five-years rule”. Some of the rules in §121 significantly reduce the gain exclusion if you’re not careful.
The biggest rule almost always overlooked is the rule about “periods of non-qualified use”.
Section §121 says “nonqualified use means any period during which the property is not used as the principal residence of the taxpayer or the taxpayer’s spouse or former spouse.”
This is where the rental property trap comes in. Sometimes a taxpayer has the opportunity to move to a new house without having to sell their old primary residence (for example, receiving a new house as inheritance). Oftentimes, when this happens, the taxpayer decides to convert their old residence to a rental property after they’ve moved into the new place.
Then, after a few years of renting the property, they decide they would actually like to sell the house instead of continuing to rent it. Typically, the tax payers still technically satisfy the rule of having the house be the primary residence for two out of the last five years (the two oldest years of the five being the primary residence, and the most recent 2-3 years being the time as a rental property).
The taxpayers sell the house and are then surprised to find out they get hit by a large tax bill related to gain on the sale. Unfortunately, what has happened is that the 2-3 years of renting the property means the majority of the time is considered “unqualified use”.
What’s double trouble about this trap is that it is a proportional disqualification. This means gain on the sale needs to be allocated to the rental property portion of the house’s history in proportion to the amount of nonqualified use time over the past five years. So, if you rented your former personal residence for 3 years, that means that 3/5ths of the gain needs to be allocated to the rental property period, and only 2/5ths of the gain can be excluded as a personal residence.
With the way Texas real estate has been rapidly appreciating in value, a taxpayer could be in for quite the surprise tax bill. For example, let's say that a taxpayer just sold their rental property/former home and had $250,000 of gain from the sale. If the home had never been a rental property (i.e. never had any nonqualified use), then the entire gain from the sale could be excluded under IRC §121.
But lets say the property was rented for the past three years instead. This would mean that 3/5ths of the $250,000 gain (i.e. $150,000) would be allocated to the rental property and would be subject to capital gains tax. That could result in a tax bill of $22,500 to $35,700 depending on the taxpayer's tax bracket.
After accounting for the cost of taxes, as well as the value of gain exclusion lost due to periods of non-qualified use, oftentimes it turns out to be a better return on investment to simply sell the former home instead of renting it.
If you are considering converting your primary residence to a rental property, please reach out to us so we can provide you with additional guidance to see if this really is the most effective strategy.