Investors & landlords

Possibly, it depends on the time spent on the rentals. 

“Under the safe harbor, a “rental real estate enterprise” is 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. For rental real estate enterprises that have been in existence for at least four years, the 250-hour requirement will be met if, in any three of the five consecutive tax years that end with the tax year, 250 or more hours of rental services are performed per year for the rental real estate enterprise.

The IRS says these hours include 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 for the enterprise.”

And

“The safe harbor requires that separate books and records be maintained for the rental real estate enterprise. Property leased under a triple net lease or used by the taxpayer (including an owner or beneficiary of a relevant passthrough entity) as a residence under Sec. 280A(d) would not be eligible under the safe harbor.

Other requirements in the safe harbor are:

• The taxpayer must maintain contemporaneous records, including time reports, logs, or similar documents, regarding the following: hours of all services performed, description of all services performed, dates on which those services were performed, and who performed the services.
• The taxpayer or relevant passthrough entity must attach a statement to the tax return filed for the tax year(s) the safe harbor is relied upon. This must be done each year.”

More information about Safe Harbor