The Mark Perlberg CPA Podcast

EP 038 - What is Real Estate Professional Tax Status & How it Can Save Save You Millions in Taxes

September 05, 2023 Mark Season 1 Episode 38
The Mark Perlberg CPA Podcast
EP 038 - What is Real Estate Professional Tax Status & How it Can Save Save You Millions in Taxes
Show Notes Transcript Chapter Markers

"The Secret to Keeping More of Your Money: Real Estate Professional Tax Status Unveiled"

For many real estate enthusiasts, the Real Estate Professional Tax Status remains a key component to minimizing taxes and preserving wealth. Unlocking it could be the difference between mediocre and massive tax savings... Dive deep with us as we uncover the criteria to qualify, why it's so coveted, and how pairing it with positive real estate rentals can make the taxman blink twice.

Some of the key topics are: 
 - Who has Real Estate Professional Tax Status 
- Why Does Real Estate Professional Tax Status Matter
- How to Material Participate 
- How REP Status Allows you to Create Tax Savings 
- How Cash Flow Positive Real Estate Reduces Taxes with REP Status 
- Real World Examples 
- Alternatives to REP status for tax Strategies

But there's more:

  • Strategy stacking: It's like 3D chess for your finances.
  • Alternatives to the real estate professional tax status: Because one size doesn't fit all.
  • Future-proofing against the ever-looming tax sword.

And here's where things get exciting:

What if you could redirect income streams to pockets of opportunity? Or what if there was a way to capitalize on the "job exit tax strategy" that can neutralize your capital gains tax? We explore these and other goldmine strategies, ending with a segment dedicated to revealing how real estate can transform the finances of those who feel shackled by over-taxation.

If you're asking, "How do I implement this in MY financial journey?" – we have an exclusive offer just for our valued listeners. Consider signing up for a discovery session with our firm, where we'll dissect and strategize specifically for your financial landscape. Don't miss out! Book Your Session Here!

Join us in this thrilling episode, and together let's redefine your financial destiny.

Mark Perlberg:

All right, welcome everyone. We're gonna talk about the real estate professional tax status. This is one of the most powerful vehicles that I know of in reducing your taxes, and a lot of people talk about investing in real estate and maybe they haven't and they don't realize they have the real estate professional tax status. We find there are other folks who don't realize that they could just do a few minor adjustments to achieve the real estate professional tax status and they overlook and miss out on the potentially millions of dollars or thousands of dollars of tax savings that could come along with this. So we're gonna talk about what this is and dive into more detail here. So here's some of the things that we're gonna cover here. We are gonna discuss hold on one second who has real estate professional tax status. Why does real estate professional tax status matter, how to materially participate that's gonna be an extremely important element of this and what is material participation? We're gonna talk to you about how the real estate professional tax status can create tax savings for you, and then how we can use cash flow positive, profitable real estate rentals to actually reduce your taxes when you combine that with the real estate professional tax status. We're gonna give you a real life example of how the numbers play out. And then we're gonna talk about strategy stacking and combining this with other features to really maximize the benefits of the real estate professional tax status. What other strategies and opportunities are available for us not only to maximize the tax savings, but also most take advantage of that tax savings to prevent future taxation? And then, finally, we're gonna talk about alternatives to the real estate professional tax status. So let's say you can't quite get it, or maybe you lose a rep status. What are some alternative things we can do if the real estate professional tax status doesn't work for you, but you still wanna create six figures of tax savings every year by having a proactive tax strategy and working with a qualified tax advisor? So let's go into the first topic who has real estate professional tax status? So to have the real estate professional tax status, we need to say that both elements are true, either for you or your spouse. So one spouse must have both of these attributes. We need to say that either you or your husband or wife works at least 750 hours in their real estate trader business, and that same person who works 750 hours a year in their real estate either qualifying real estate trader business is spending at least 50% of their time in that real estate trader business. So and this is a question I know you're already gonna ask, so I'm gonna answer Can I get real estate professional tax status while working a full-time W2 job? Most likely not. If you're working 40 hours a week as a physician or doctor or whatever your day job is, it's gonna be really hard to justify and substantiate working more than 40 hours during your side hustle. Now if you have a part-time W2 job, it might be possible. If you have a part-time business, it might be possible. And we're gonna dive into how we can play this to our advantage and be proactive in acknowledging this 50% test. Because the 750 hour requirement to get that real estate professional tax status is relatively easy. If you're a weekend warrior, you could put in 15 hours a week and get that attribute. But the hard one here is to get that 50% hours if we have other sources of income, and we're gonna talk about that down the road. But one strategy right off the bat that you're gonna love is you're gonna be able to. If you have a stay-at-home mom or a husband or wife that isn't working full-time, they can very easily get this rep status and save you millions of dollars in taxes, and stay tuned till the end, because we're gonna talk about how this all comes together and how you can use this for your advantage as well in some ways that you can apply all these concepts to your own life. So let's dive a little more deeper into what kind of activities do we have to spend at least 750 hours on, and more than 50% of our working hours on, to get this rep status? Real estate professional tax status. The qualifying activities, as defined by the IRS, are development, redevelopment, construction, reconstruction, acquisition, conversion, rental operations, management, leasing and brokerage. To give you a simplified list of examples that we most see getting people that real estate professional tax status is, if you are a full time real estate investor, a real estate agent, house flipper, real estate syndicators, property managers and wholesalers these are the people who we see most often getting that real estate professional tax status. If you are a lending officer, you do not have real estate professional tax status because that is not one of the qualifying activities. Unfortunately, even though I advise real estate investors, I don't get that status because I do not do one of the qualifying activities. Another thing you want to consider here is you need to have at least 5% ownership of whatever business. This is to say that you're doing this qualified activity and getting rep status. Either you have some sort of business interest in whatever company you're working for that does this, or if you are an independent contractor, that also qualifies for that 5% test to get you the real estate professional tax status. Okay, so now we know how to get that real estate professional tax status. We got to do the qualifying hours, we have to do the qualifying activities. But let's learn about why am I bothered talking to you about this concept and why does it matter? So the real estate professional tax status allows the tax payer to reclassify your rental losses as non-passive. What I mean by that is normally we have rental income put in a separate bucket of activity. In one bucket we have our active income, which is what most of you have. That's your W2 job and that's your business income, typically right? Or if you're a general contractor, whatever it is, your S-Corp activity, your Schedule C general contractor all that stuff is in your active income. When you have losses from your rental properties and we're going to show you how you can create lots of losses, even if you're profitable, but you're going to create losses in your rental properties and if you don't have real estate professional tax status, you're most likely not going to be able to use those losses to reduce your taxes and offset the taxes that are created from all of this profitable, positive, active income. So if we don't have real estate professional status, we're most likely and I'll show you some exceptions later, but we're most likely going to have these losses from our real estate, but they're not going to reduce our taxes and give us much benefit until we have a capital gain. We can either have a capital gains event for a real estate or we have positive income statements from our rental properties. So once we get the real estate professional tax status, we can use these losses to offset the business income, the W2. We can also use it to offset capital gains income and dividend income and interest income. Now, before we get too excited, like I said, we can use the rental properties to reduce our taxes with RepStats, which is fantastic, but there's another element that we need to have here, which is called material participation. Now, material participation is easier to obtain than real estate professional tax status, but we still want to keep this in mind. So you need to say that you materially participate in your rental activities. In order to say that this is true, we need one of seven attributes to be true to say that you materially participate. Now, the most common of these is going to be the 100-hour test, the substantially all test and the 500-hour test. Let me tell you a little more about what this means. So if you self-manage your own long-term rental and you don't have anyone else helping you out in this, we could say that you do substantially all the work and therefore you materially participate in your long-term rental activity. The substantially all test it isn't incredibly clearly defined, but we can say that if you provide at least a little greater than 50%, 50% or more of the activities performed on that real estate rental, you're doing substantially all. And then we materially participate. The most common that we see people trying to pass is the test of 100 hours, and more than anyone else. So let's say you do have help from plumbers or assistants or whatever. If we put in 100 hours or more per year in our rental activity, then we are materially participating and therefore, combined with rep status, can use our rental losses to offset our active income. And then finally, let's say we have other partners involved or property managers, we can pass the 500-hour test. So as long as you're putting 500 hours a year into our real estate rental activities, we are therefore materially participating. And then again we combine that with the rep status. Now we can use our rental losses to offset our active income from our jobs and from our business. Some other things I want to let you guys know about material participation here that are very important. You can combine the hours of you and your spouse to materially participate. So let's say you want to pass that 100-hour test but you are spending only maybe 30 hours a week, over 30 hours a year, overseeing your rental activity and you're not doing substantially all. Well, let's say your spouse is putting in another 90 hours. Well, if we can say that you and your spouse combine to materially participate, then we have that accomplished. Now we do not need the person with material participation to also be the spouse with rep status. So let's say we have a husband who has a full-time W2 job and manages rentals and the wife is the one with the real estate professional tax status and doesn't touch the rentals, we can still get that material participation test passed and we can still use the real estate professional tax status of the wife and we can combine with the material participation of the husband to treat your losses as non-passive from your rental properties to offset your income and reduce your taxes. Also, when we do this test, we can look at all of your rental properties as a whole to pass that test, or each rental property individual. Generally speaking, we'll look at your rental properties as a whole and group them together for that test, so it's easier to pass that test as you start getting busier and busier and using property managers or maybe investing as LP in some of your deals to still pass that material participation test. Let's so now. So we talked about the material participation and the rep status to use your losses to offset your other sources of income. Now you're at this point. You're probably thinking well, this is great, but I'm not a loser. I want to make money on my rentals, I want to have cash flow. So how can we create losses? How are we going to create tax losses that are going to reduce your taxes? So, if we are, the ways that we can do this is we can create losses through depreciation and advanced strategies that, even though you're profitable. When we report your income on your return, you're actually going to see losses and the income statement will be negative and will reduce your taxes and some of the ways that we do this. First, you want to understand what are your available deductions and how do we maximize them. You may find the opportunity to put your vehicle in your business. You may find that you could put your kids in the business and hire them to help you out. All these opportunities to strategically and resourcefully create write-offs will further reduce your taxes. Now, the most common way and one of the greatest advantages of real estate is depreciation. When we're talking about real estate tax savings and this is how it's going to work You're going to, even though that real estate is going to be increasing in value in the market. We're going to be getting that depreciation deduction year after year after year to offset the cash flow and create tax losses on your return. And we can do something called the cost segregation study. When we do a cost segregation study, we are going to front load that depreciation in year one and get additional depreciation deductions, and it's called bonus depreciation in year one to get lots of tax deductions. And we're always going to see a tax loss, even if we're bringing in lots of rental income, and that loss will then carry over to offset your W2 or other sources of income to create some tax savings. If you want to learn more about depreciation, I have a webinar titled how Depreciation Saves Real Estate Investors Millions in Taxes. I also have a wonderful interview with Yono Weiss on cost segregation. I don't want to dive too deep down that rabbit hole because I have explained that in almost all of my webinars for many, many hours, but basically at a high level. What we're doing with this cost segregation study is we're going to evaluate the real estate. We're going to find that some of the items in that real estate depreciate faster than the typical depreciation life of real estate. So personal property depreciates over five years or let's say, the pool depreciates over 15 years, and when we pull out items that depreciate faster, we're going to be able to get that more of that depreciation up front. And then there's something called bonus depreciation, where anything that we identify with the depreciation life of 20 years or less is going to qualify for bonus depreciation. We write off 80% of all those values in year one. Right now our rule of thumb is roughly 20% to 40% of purchase price will be deducted for bonus depreciation if we do a cost segregation study in year one. Now how much of that are you going to get really depends on the type of asset you're getting. So now that we know about real estate professional tax status, cost segregation and bonus depreciation, I want to give you guys just a hypothetical example. Actually we did have a very similar client to this. But let's say we have a wife who's a physician and makes a million dollars a year. The husband is a full-time real estate agent. But let's just to keep things simple, right now we're not going to consider the real estate agent income. But they purchase a $2 million multifamily investment deal. We run a cost segregation study that allows us to accelerate the depreciation and get a half a million dollar tax deduction in year one because of all of that bonus depreciation from the non-real estate items that we've identified in this property. So we accelerate that depreciation, we get a year one deduction of half a million dollars and let's say we're at a combined marginal rate of 35%. So with an extra $500,000 tax deduction at a marginal rate of 35%, we're going to get a $175,000 of savings on our return. So let's say, that physician is a W2 and without doing the cost tag and having rep status, it would have been a break-even return. Well, we do the cost tag and now that client of ours is going to get a tax refund of $175,000. And we see this all the time. What's the next step? If you're a real estate investor, you take that $175,000 and you invest into more real estate, run another cost tag. That'll give you additional tax savings. So you use that $175,000 as a down payment. Maybe that'll get you another property for maybe $800,000. Take some of your cash flow and put it in there as well, or some of your earnings from your job, and then we do another cost tag in the following year. From that new property We'll create additional tax savings. So you can already see here how we can create a cycle, a compounding effect. By every year we buy real estate, we do the cost segregation study, we get the bonus depreciation and that's going to allow us to create a massive savings on our return. We reinvest that savings into more real estate. That gives us more cash flow, more tax savings, more bonus depreciation and then, year after year after year, we're minimizing our taxes, building up our equity, our wealth and our cash flow, and it's really a wonderful vehicle to accelerate your progress and path towards achieving financial freedom life changing for many of our clients. So I'm going to answer some of your questions before we go into strategy stacking here. So, in regards to material participation requirements, how are the hours substantiated by the governing body? So what I think we're looking for here is how do you document and substantiate these hours? So what we recommend and what the IRS recommends is you maintain an hour log and that hour log you want to show what activity you're doing, on what date and on what property and how long you're doing it, and if we can have that record of all your activities, that's going to protect yourself under the scrutiny of the IRS to show that you're putting in 50% of your working hours and 750 hours per year in your real estate activities. Another question here is does having multiple LLCs or one LLC for each property impact that the material participation requirements? The number of LLCs you have has absolutely no impact on your material participation test. Let's go into some strategy stacking now. So we know already that what this material participation sorry, with this real estate professional tax status is going to do for you right? We already know that it's going to allow us to take our real estate rental investments, generate losses through COSEC and then use those losses to offset the taxation imposed on our W2 and our business incomes or our capital gains dividend and interest income. How can we now maximize the benefits of this when considering other opportunities? Well, we have many instances where the client has more tax deductions than they know what to do with. So if we bring a client into a $0 tax bracket, we don't want to let a good tax bracket go to waste. So let's say they have a 401K or a traditional IRA. With those vehicles, you're eventually going to pay taxes when the money comes out. So what do you want to do? You can convert them into a Roth when you are in a really low tax bracket. Take that $100,000 from your 401K, convert it into a Roth and now it's going to grow tax-free. And now when you take the money out, you don't pay taxes on it and any taxation on that conversion will be offset by the deductions you've created from the cost segregation studies, because you have real estate, professional tax status, capital gains planning If you are married, filing jointly and the losses from the cost segregation studies that are now useful. Because you have a material participation status sorry, because you have real estate professional tax status you now may consider liquidating some stock. If you're married, filing joint and you're at a $0 taxable income, your first $80,000 of long-term capital gains is completely untaxed. So now is an opportunity to liquidate that stock and maybe invest it into more real estate. Qualified opportunity zones is a great capital gain strategy as well. Let's say you have some stock gains and you have real estate professional tax status. I love this combination. Here you defer the gain by rolling it into qualified opportunity zone and that qualified opportunity zone will likely run a cost segregation study. That can then be used, under the right conditions of material participation, to offset your other sources of income. And you go from a position of where you were expecting to actually pay taxes to now you can reduce your taxes through the cost segregation study Because you're pushing back the taxes on your capital gains. So we want to shift income to areas that are most advantageous, and what I mean by this is, let's say, we have lots of deductions coming in because we have the rep status and real estate losses. Well, maybe now we can shift some income events into this year because we're in such a low bracket like the Roth conversion, but maybe because we now know that we can use our rental losses to offset our other sources of income, we're going to be inspired to hire our family, put your kids on payroll, because now when you pay your kids to manage your rentals, those extra expenses will offset the taxes generated from your business and W2 income. They'll give you tax savings. Now your kids are going to also be paying taxes at a very low rate. They're going to get that $13,000 standard deduction, for $13,000 is untaxed. You get a tax deduction and now that can grow tax free in your children's Roth, maybe pay for their college Job. Here's one I really love, especially for those of you who are looking to achieve financial freedom job exit tax strategy. If you're looking to quit your job and achieve financial freedom through real estate, I really want you guys to write this down and take notes on this topic. Let's say we're approaching the point where we are sick and tired of our job and we are looking for ways to win the tax game to help us get over that hump of the W2 lifestyle. Well, you have some rental income. Log all of your hours in the year that you're going to quit your job because, let's say, we quit our job in July or early August. If we've been working in real estate the entire year maybe five hours, 10 hours a week and then we quit our job, we could potentially substantiate passing that 50% test, saying that we put more time in real estate than our W2 job. Now we have the real super special tax status and whatever rental we purchased in that year that we quit our job. We run the cost that we get the tax deductions. We get back summer all the taxes that they were pulling out of our W2 paystubs every other week and we get a nice refund when we file our tax returns. It will be in the minority of people excited for your tax return because of this and it will help you get additional cushioning and additional capital to reinvest it to more real estate to continue on the path of full-time entrepreneurship. The same thing for if you run a business and you're looking to exit. Let's say this is the last year you're selling your business. You're going to recognize some taxation on your business or maybe you're going to also have some capital gains on the sale of your business. Well, maybe you should think about rolling some of your capital or proceeds from the sale of your business into real estate. And if you can be a full-time real estate professor or your spouse is full-time real estate professional, you can now use the tax losses from your real estate to offset whatever taxes would have been paid on your business income or to offset whatever capital gains of taxes would have been incurred on the sale of your business. Fantastic combination of strategies here. And maybe, if you're over the age of 59 and a half, you may consider maybe even taking some of the funds out of your 401ks and investing into real estate to continue to build your portfolio, using the cost tax to offset the taxation when you liquidate those 401ks. So I really love how this combines with the strategy of financial freedom in both of these examples. Here we're using the real estate professional tax status to give you that edge and additional tax savings as a form of capital to continue to reinvest into your real estate and to have enough access to cash to live off your endeavors. And one of the things that I also love is the stay at home rock star mom, because we let's face it, all moms are rock stars. They work very hard, and what I love here is what we see is we have a high income earner husband who's making in the six or seven figures, and then the wife gets the real estate professional tax status and what we find is this is instrumental in building wealth and securing the legacy for your family. As far as tax advantage capital, the wife could be a stay at home real estate agent or just manage the rentals from home, and now the wife can help with finding cash flow positive rentals. Maybe just get the real estate license just so you can have access to the LLS system and close your own deals and pay less commissions. And then you're going to run the cost eggs and you're going to create tons of savings. And then when that husband file and looks at that W2 and they file the return, you can eliminate hundreds of thousands of dollars to offer against that W2 for taxation reasons. And we really see this as a wonderful strategy to not only create tax savings, but now we can have business meetings that are tax deductible and further reduce your taxes. Husband, wife business meetings we can also get again, get the children involved. And now, with all these opportunities that we're talking about, where real estate professional tax status is going to create some significant savings. Some of you listening may realize that it's impossible or nearly impossible for you to achieve the real estate professional tax status because you have your full time W2 jobs, you like your job, you make a lot of money, you're not ready to leave. So what are some alternatives here? How can we continue to reduce our taxes If we're interested in real estate and or entrepreneurship and we want to continue to win the tax game? Well, the first and most obvious when you may have heard of is short term rentals. With short term rentals, we do not need the real estate professional tax status to offset our other sources of income. If the average length of stay is seven days or less, you're still going to need to materially participate in your short term rentals, but you don't need either spouse to work full time or more than 50% of their hours in the real estate trader business. So we see lots of high income earning W2 people taking an advantage of this loophole with the short term rentals. Another opportunity here in we don't have enough time to really delve into this. There are all sorts of charitable vehicles, once your income exceeds half a million dollars, where you can create endowments and you can have certain types of purchases that are going to create significant tax savings, and this is what the super wealthy are doing to minimize their taxes by taking advantage of the tax treatment of certain charitable giving structures that will further reduce their taxes. We just had a client that we did this with and we saved the client approximately $205,000 in taxes, net of the setup fees and capital contribution of the client life changing stuff. There are also tax credit opportunities associated real estate investing and also what we're exploring right now is for clients to further take advantage of solar energy businesses and being investing in those and instead of really what we're seeing here is, instead of paying the IRS, you're going to buy a business asset that creates tax credit and future tax savings. Passive income generators are amazing. So let's say we have a business that we do not materially participate, so we're a limited investor or a passive cash partner and whatever type of business you can imagine. We can now use the real estate losses to offset that other source of passive income or maybe, if we're really advanced and have the right advisors around us, we can create a spin off entity or to have some sort of passive income. Maybe we have another business that performs a different function that we own but do not materially participate in, and now we have passive income that we can eliminate the taxation on because of our real estate losses. Another opportunity here is investing in oil and gas. So let's say you're too stinking busy to be a landlord and very taken advantage of the short term rentals, or you know you're not going to get rep status, but you're looking for a way to get passive income. You're looking for a way to get passive cash flow and reduce your taxes. We love using oil and gas to reduce your taxes and check out my webinar. We had a wonderful conversation with Stuart Turley and Ray Tavino talking about this topic. Approximately 80 to 90% of every dollar you invest will be deductible against your business or W2 income. So if you're investing in a working interest in oil and gas, you're going to get what's called intangible drilling cost deductions and in that year one, let's say, we put in $100,000 and we may get an 80 to $90,000 tax deduction to further offset our other income. Now the benefit of oil and gas over real estate is we do see really good returns on investment and return of capital. That can be pretty fast, and another advantage that we see is you do not have to be a landlord, no more dealing with tenants, toilets and trash. And finally, let's say none of this is appealing to you, but you still want to invest in real estate. Well, you're still going to be winning the tax game because real estate is tax advantage, even if you don't have rep status, even if you don't have short term rentals. If you're in the game and you're investing in real estate, you're most likely going to see your depreciation offset all the rental revenue from the real estate and so you're going to see the benefit of having positive cash flow, cash coming into your pocket that you're not paying taxes on. And when you exit out of that real estate, you have the tax advantages of capital gains, long term capital gains, tons of strategies to reduce or completely eliminate the tax implications on the sale of your real estate. So you're still going to have, in spite of all these things if you can't take advantages of any of them, you're still going to see lots of tax advantages because of the depreciation and advantage, the advantageous tax treatment of your real estate. So you're still winning the game even without these things. So this is just. I hope this gets you excited about the opportunities and the potential tax savings of real estate investing Now as far as next steps, and I want you to continue putting any questions you may have in the chats as far as next steps. If you are really interested in any of these topics, feel free to email me or our team at info at markprobergscpacom, and we can talk about how any of these topics may apply to you. Listen to any of my webinars on cost segregation, oil and gas depreciation and now you know about real estate professional tax status. And another thing I just want to emphasize here is that tax planning is about more than just cost segregation and bonus depreciation. The bonus depreciation is going to be phasing down, so our cost sags are going to be a little bit less impactful in the upcoming years. And oftentimes we find that our clients still owe money in taxes after we've ran the cost segregation studies. Or maybe they can't find a good rental, or maybe they're just done being a landlord and after that point there are tons of other opportunities with charitable structuring and advanced entity structuring. But we can work with the client and still create seven figures of tax savings by being collaborative and resourceful with those clients through creating additional forms of tax deductions charitable tax deductions or tax credits, if we really dive deep and provide an advanced tax reduction strategy. And the tax plan is always changing year for year to year. We're always updating and refining our approach based on the evolution of the client situation and changes in their goals and changes in the tax code. So I hope this guy this, gives you all a good understanding of what real estate professional tax status is and understanding if it's possible, whether for you, for your spouse or maybe in the future when you see a change in life events. And this can literally be life changing for some of you folks who are overpaying in taxes and are interested in using real estate as a vehicle to generate financial freedom. Thanks a lot for your time, everyone. I'm going to give you about 10 more seconds for another question to come in. Anyone who who RSVP, you'll get the recording when it's published and if you want to learn more, make sure you subscribe. We're all over the place social media and YouTube, instagram, tiktok, etc. Etc. And we hope to hear from you soon and we hope you enjoyed the presentation.

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