01/23/2019
Last week the IRS issued final regulations related to the new Section 199A deduction. Sec. 199A allows taxpayers to deduction up to 20% of qualified business income (QBI) from a domestic business operated as a sole proprietorship or through a partnership, S corporation, trust, or estate. The Sec. 199A deduction can be taken by individuals and by some estates and trusts
Of note, the final regulations, in conjunction with IRS Notice 2019-7, provide a safe harbor for when a “rental real estate enterprise” would be treated as a trade or business for purposes of Sec. 199A.
"Under the proposed safe harbor, a “rental real estate enterprise” would be treated as a trade or business for purposes of Sec. 199A if at least 250 hours of services are performed each tax year with respect to the enterprise. The IRS says this includes services performed by owners, employees, and independent contractors and time spent on maintenance, repairs, rent collection, payment of expenses, provision of services to tenants, and efforts to rent the property. However, hours spent in the owner’s capacity as an investor, such as arranging financing, procuring property, reviewing financial statements or reports on operations, and traveling to and from the real estate will not be considered hours of service with respect to the enterprise."
However, the safe harbor has a catch: you must maintain contemporaneous records, including time reports, logs, or similar documents to prove that the enterprise meets the 250 hours test. A similar requirement for the real estate professional test trips up a lot of taxpayers because it is time consuming to keep a contemporaneous log. It's not clear how a taxpayer could support time for a contractors such as property managers. It will be interesting to see how the new regulations and the safe harbor will be applied in practice.
The package includes final regulations, guidance on how to calculate W-2 wages, a safe-harbor rule for rental real estate businesses, and new proposed rules on the treatment of previously suspended losses.