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Home Seller Capital Gain Tax Changes

Sep 2, 2008
I am sure you are aware of the U.S. tax regulation that allows homeowners to exclude a certain amount of capital gain from their income tax.

It works like this: If you sell a home that has been your primary residence for two out of the last five years you can exclude up to $500,000 in capital gains from income tax. The original intent was to prevent large capital gains tax liabilities from locking older homeowners into their homes.

That exclusion has been a wonderful break for clever real estate investors. You could buy a home that needed rehabbing. Move into the home and start doing the necessary repairs. After 18 to 20 months you could offer the home for sale with the stipulation that the deal could not close until after you passed the two year residency mark.

The idea here was that the home would be worth a great deal more after fix-up, yet you could avoid paying capital gains tax on your profit because you had lived in the property for the required two years. This is a terrific way for new real estate investors to get started. With the tax free profits from a couple of these deals you would have the cash need to make down payments on two or three properties and you would be off and flying.

No Tenants, Please

Some investors using this tactic rented the property before or after they used it as a primary residence. They may have bought a property that was already being used as a rental and it suited their needs to leave the tenant in place for a year or three, before they moved in. Until Jan. 1, 2009 they could still claim the tax exclusion if the home was used as their primary residence for two out of the five years they owned the property.

When it finally dawned on the politicians that the rule was curtailing the amount of tax income that they could frivolously spend, they, of course, changed the rules. Under the "The Housing Assistance Tax Act of 2008" the amount of profits that can be excluded from your income tax becomes more complicated. Your gain will now be taxed based on the percentage of time you used the home as your primary residence.

Under the new act, any capital gain must be divided between qualifying and non-qualifying use. That means your non-qualifying use of the property will cut the amount of capital gain that can be excluded from your income tax.

It Now Works Like This

You avoid up to $250,000 in capital gains ($500,000 if married and filing jointly) when selling your home. To earn that exclusion you must own and live in the property as your primary residence for at least two years out of the five years ending on the date of sale.

Here's where you must be careful. If the property isn't used as a primary residence during the entire five-year period you will have to pay more capital gains tax. If you use the house as a rental, or a vacation home or as a second home; any of those would be non-qualifying use and would reduce the amount of your capital gains tax exclusion.

Just remember that "Qualifying Use" means the property must be used as a primary residence. Non-qualifying use means the property is not being used as a primary residence by either the homeowner or the homeowner's spouse. If you use the home as your primary residence you will not need to allocate your gain.

Calculating Gain

In most cases calculating your gain will be simple. The gain from the sale just needs to be allocated between what gain is excluded and what gain is not excluded. The portion of capital gain that cannot be excluded is determined by dividing the period of non-qualifying use by the period of ownership:

Period of non-qualifying use
Period of ownership

Until the new act, tax advisors suggested homeowners sell their home after living their for at least two years out of the five years ending on the date of sale. This allowed the owners to qualify for the capital gains exclusion, because the exclusion was based on the last five years of ownership.

Under the new regulations the exclusion is based on the period of time when the property is used as a primary residence. Any other use could mean you must pay more in capital gains tax.

Taxpayers owning second homes, vacation homes, and rental properties will need to revise their capital gains strategy accordingly. The use test is applied for the time period beginning January 1, 2009, until the property is sold. To get the most tax benefit, the property will need to be used entirely as a primary residence during this time period.

If you would like to review the many ways government can confuse a free market with an incomprehensible tax code, you will find a summary of the tax provisions in H.R. 3221 from the Ways and Means Committee here:

About the Author
Mark Walters is a third generation real estate investor and founder of CreatingWealthClub.com. For a limited time Mark is offering his big guide to finding hard money loans for real estate investing free. Free guide to private money loans.  http://www.FindPrivateMoney.info
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