What Is the Capital Gains Tax?

The run-up in New York City real estate valuations has many owners contemplating capital gains tax exposure over the last two decades. When you are ready to sell, you should prepare. The government expects its share in the form of capital gains tax. We have covered capital gains taxes for real estate investors and ways to use depreciation and 1031 exchanges in tax planning, but these are not available to individuals.

Whether you are planning on purchasing or selling a home, learning about capital gains and how you can mitigate your liability is essential.

What is a Capital Gains Tax?

Houses are considered a capital asset, even residences that you O. The IRS defines capital gains and losses as the difference between the “adjusted basis” and the sales price you received for the capital asset.

The adjusted basis is the asset’s cost, plus any expenditures for improvements expected to have a useful life of more than a year. For example, if you gutted the bathroom and put in new kitchen cabinets, these would add to your initial cost to purchase the apartment and lower your capital gains tax. Routine maintenance, such as painting, does not get added to your price.

Of course, keeping receipts for these major projects is good if the IRS asks for proof.

Turning to the selling price, you should deduct expenses. These include the real estate commission and legal fees to determine the amount realized.

Short-Term Vs. Long-Term Capital Gains Tax

Knowing whether your gain/loss is long-term or short-term is essential. For example, holding your apartment for more than a year, which is the case for most people, qualifies the capital gain/loss as long-term.

Long-term capital gains; are taxed at more favorable rates than those held for the short-term. While short-term tax rates are the same as ordinary income tax rates, which top out at 39.6%, long-term capital gains range from 0% to a top of 20%.

If you are in the 10% or 15% tax bracket (2016 incomes up to $75,900 for those married filing jointly), your long-term capital gains tax rate is 0%. If your income is taxed in the 25%, 28%, 33%, and 35% brackets (incomes from $75,901 to $470,700); your gain is taxed at a 15% rate. The top tax rate, 20%, is for those in the 39.6% income tax bracket (joint filers with $470,701 and above).

A One-Time Break

The government has provided a generous provision for homeowners to exclude a significant portion, up to $500,000, if filing jointly ($250,000 for others) of a capital gain. You must meet the ownership and use requirements, but these are not restricted; to single-family owners and apply to co-op and condo owners.

You qualify for this lovely break if you owned the home and lived in it for at least two of five years before the sale.

Another Way to Minimize the Taxable Gain

The IRS lets you deduct capital losses from your capital gains. Since the IRS only allows a maximum capital loss of $3,000 in one year, you may have impairments in prior years that you can roll forward. If you determine to sell other investments and realize the damage, you can offset the profit in your home.

For example, if you had a $10,000 loss from a stock sale, you can claim $3,000 for the first three years and $1,000 for the fourth year. For simplicity’s sake, if you sell your home the same year the loss was realized and have a $20,000 gain (after the $500,000 exclusion), you can use the $10,000 loss and only pay a capital gains tax of $10,000.

Withholding for Foreigners

When foreigners sell U.S. real estate, they are subject to the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA). Therefore, you must have 15% of the amount realized (sum of cash paid, FMV of other property transferred, and any liability rates; being assumed).

LLCs

We have explained capital gains for individuals. If you are an investor and formed an LLC, you still benefit from the lower capital gain tax rates. However, the situation is more complicated. For instance, you can deduct depreciation annually, only allowed for investment properties.

Deductions defer your taxes, but when you sell it, the depreciation is “recaptured,” You pay a 25% rate on the amount you claimed for property depreciation throughout the years. A 1031 exchange allows you to postpone capital gains taxes; although there are conditions, such as using the proceeds to invest in a similar property (although you have wide latitude)

How to Avoid Paying Capital Gains Tax?

We recently discussed how depreciation is a non-cash deduction that delays income taxes due. However, there is more good news for those that have sold an investment property for a profit. The IRS allows individual property exchanges to kick tax payments further down the road.

What is a 1031 Tax exchange?

You can exchange your property for a similar-like-kind property. So-called; a Section 1031 Exchange, or just a 1031 tax exchange. It is handy for real estate since it applies to other investments such as stocks and bonds. While you typically have to pay a capital gains tax when you sell your investment property, you can postpone it.

There are some conditions, of course. First, you must use the proceeds to invest in a similar property. It seems complex, but you should not get hung up on the terminology, preventing you from doing a 1031 exchange. The IRS takes a broad view on the subject, generally considering the real property similar, as long as both are in the United States. Those restricting real estate investment to New York City should have no issue.

The IRS will also want to see that you have not sold the property and invested in another. Such would trigger a taxable event. If you switch one like-kind home for another, that will qualify. But, this can get more complex. You can defer the exchange, providing you meet the IRS requirements.

Like-Kind Requirement

For instance, the agency will want to see that the entire transaction is linked and cannot stand independently. You also have 45 days from selling the property to designate (in writing) the replacement property you will buy. You also have to close on the new property within six months.

Keep in mind; that the exchange only applies to investment property. Therefore, you cannot use the 1031 exchange rule on your home or your secondary/vacation property.

Real Savings

After selling your investment property for a $1 million gain, you feel pretty good. However, there is a top long-term capital gains rate of 20% if you hold it for more than one year. In 2016, this kicked in if you are in the 39.6% tax bracket. This means your income was $470,701 or above for those married and filing jointly.

You might feel glum after figuring out how much you owe in taxes. If you don’t do the exchange, you owe $200,000 in capital gains taxes. But that is not all. Since you took advantage of depreciation, the IRS expects this amount recaptured. For example, suppose you have expensed $100,000 in property depreciation. Uncle Sam expects you to pay 25% of this amount, or $25,000 ($100,000 multiplied by 25%). This example estimates a tax rate bill of; $225,000.

You decide to engage in a 1031 exchange. You find a suitable property within 45 days and close within six months. Assuming this is a delayed exchange, you need an intermediary to hold the cash from the sale. If you receive any money, i.e., after you swap properties, the one you gave away was worth more, so you get money. This part of the transaction is taxed immediately as a capital gain. To avoid this, buy a property worth at least as much as your old one.

Deferring Taxes in Sum

The above was a simple example. However, it would help if you also considered your mortgage. For example, if you had a $500,000 mortgage, the new mortgage loan is $400,000, that $100,000; is regarded as a profit. To avoid this, buy an apartment worth at least as much as your old home; carry the same or higher mortgage.

There are also reverse exchanges where you buy the replacement property before “selling” yours. However, these are not practical since you buy the property with all cash, but banks may be reluctant to lend.

Concluding Thoughts

We have seen that the government seeks to encourage real estate ownership with favorable tax treatment. Proposals from the Trump administration would lower the rates further. However, the outcome is far from certain.