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Returning Member

Adjustments to Income

My wife and I own 66% interest in a LLC identified as an S-Corp.  This LLC operates 2 rental properties that are owned by my wife and I.  Our 66% share of Income and expenses for these properties resulted in a loss of $11,622.  As the LLC is an S-Corp, this loss should "pass through" as an adjustment to on our joint return Form 1040-SR, Schedule 1, Part II, line 22, but there is a zero (0) value on this line on the completed return.   Why isn't this loss presented as an adjustment to income.

 

My wife and I are retired and we are not real estate professionals.  These rental properties represent a "passive" investment.

8 Replies
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Level 10

Adjustments to Income

Do you "actively participate" in the rental?  For example, help make decisions who can rent there, what to do with the house, etc..

 

Is your total income over $100,000?  $150,000?

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Level 15

Adjustments to Income

Actually, some clarification is necessary here.

My wife and I own 66% interest in a LLC identified as an S-Corp. This LLC operates 2 rental properties that are owned by my wife and I.

So that means the S-Corp does *NOT* own any real estate. The S-Corp is merely a rental management company that manages property owned by others, right? (That would include property owned by those who have ownership in the S-Corp.) The important thing that matters here, is that the S-Corp does *NOT* have any ownership of any real estate, from the way I read your post.

 

 

 

Highlighted
Level 15

Adjustments to Income

in what name is the property titled? if the LLC and the LLC elected S-Corp status then the LLC owns the real estate but all the rental activity is reported on the S-Corp because that's how the LLC members elected to have it taxed.   holding real estate in an LLC that elects to be taxed as an S-Corp is probably the worst way to hold real estate if it is operating at a loss.   the issue is basis/at-risk limits to deduct the losses. for individuals, LLCs and partnerships holding real estate, the mortgages count for determining bais and at-risk - not so in an S-Corp.  thus you may not have basis or be at risk to deduct the losses.  

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Returning Member

Adjustments to Income

Thank you for your reply.  Please consider this fact in the situation:  the rental properties are owned by my wife and I, not the LLC.  The LLC is just used to collect the rents, pay the mortgages and any other expenses related to the properties.  I trust this information provides more clarity and, maybe changes your response.

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Returning Member

Adjustments to Income

The S-Corp does not own any real estate.  It was established as a separate entity by my wife and I and our son (each owns 33%) in order to administer the operation of the rental properties owned by my wife and I.   

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Level 10

Adjustments to Income

I think you need to go to a professional.  Maybe multiple professional (tax professional and attorney).

 

From the limited information that you have given, the S-corp sounds like the management company.  As such, the rental does not go on the S-corp return.  It would go on your personal tax return and anything you pay to the management company would be profit on the S-corp return.

 

Maybe the professionals can looks that more details about the situation and/or advise you how to change the situation, but as of now, that is how I view it.

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Level 15

Adjustments to Income

I suspect you are not aware of the risks you may be unknowingly putting yourself at here, and those risks really have nothing to do with taxes - but can be much more serious. Check out the below.

Additional Information For Rental Property Owners

Occasionally a rental property owner will be “convinced” they need to put their rental property into an LLC (be it single owner or multi-owner LLC) as a means of protecting themselves and their personal assets from legal litigation should they ever be sued by a tenant. The property owner is told the LLC gives them and their personal assets a “veil of protection” from any legal litigation that may arise as the result of legal actions perpetrated by a rental tenant. Nothing could be farther from the truth.  If you check court records (even in your local area) you’ll probably find numerous cases where a tenant sued their landlord and the LLC provided practically no protection of the property owner’s assets. That “veil of protection” supposedly offered by an LLC is so thin, even a new first time lawyer has no problem piercing that veil and attacking the personal assets of the property owner on behalf of the tenant. In fact, many legal firms will give such cases to their “new hires” right out of law school because it’s a great confidence builder for them since it’s practically a guaranteed win for the tenant. There are other problems and issues with this too.

In order to legally transfer ownership of rental property to an LLC, the owner must have the permission of the mortgage holder. No lender in their right mind will give this permission either. Even if you think you can refinance the property or “sell” it to your LLC, unless your LLC has the cash on hand to pay for it in full, your LLC will never qualify for the mortgage loan. The lender doesn’t want to risk your LLC going under (by filing bankruptcy for example), and they lose money because of it. So I’m confident in telling you, that’s not going to happen.

When you create an LLC for your rental property, it’s generally understood that business income gets reported on SCH C as a part of your personal tax return. However, a SCH C business produces “earned” income, and a rental property produces “passive” income. What’s the difference?

Earned income is income which you have to do out and “do something” in order to earn it. This income is subject to regular income tax, and also an additional 15.3% self-employment tax. The SE tax is basically the employer side of your social security and Medicare. But rental income is not “earned” income, and therefore is not reported on SCH C. So if you create an LLC for your rental property, then absolutely nothing concerning that rental property will be reported on SCH C. Not one penny of rental income and not one penny of rental expenses.

Rental income is “passive”. That’s because all you do with rental property on a recurring basis is just “sit there” and collect the rent every month. You are not “doing anything” to “earn” it on a recurring basis. That’s why rental income is reported on SCH E. Rental income is subject to regular tax, but is NOT subject to the additional self-employment tax. This means that rental income DOES NOT COUNT for your social security account or Medicare contributions.

SO if you create an LLC for your rental property, there are two things that will NOT happen.
 - You will not be able to “legally” transfer ownership of the property from you, to the LLC unless you have a really dumb lender.
 - You will not report one penny of rental income or one penny of rental expense on SCH C.

So in the end, you will be filing a zero income/expense SCH C with your personal tax return.

Now let’s say you decide to file the 8832 to treat your LLC like an S-Corp, and then you transfer ownership of the property to your LLC. You can and will report your rental income on SCH E as a part of the 1120-S Corporate Return, and you will also report the K-1 on SCH E as a part of your personal tax return. But keep in mind that this is for ***TAX PURPOSES ONLY!!!****. So if a tenant sues you, I seriously doubt the courts will recognize your S-Corp, and I seriously doubt the court will recognize the S-Corp as a physically separate owner of the property. Remember, that 8832 Entity Classification Election is for “TAX PURPOSES ONY”. It has no weight at all for any and all other legal purposes – such as you being sued by a tenant.

SO if you want to do this (and it still makes no financial sense) then form an actual S-Corp and transfer ownership of the property to the S-Corp. More than likely the lender won’t allow the transfer. But you can sell the property to the S-Corp if the S-Corp can qualify for a mortgage loan.  Overall though, it’s still financially dumb to do this. Here’s why I say that.

When you move out of your primary residence and convert it to residential rental real estate, you have to convert your homeowner’s insurance policy to a rental dwelling policy. Or if you buy the real estate as rental property outright, then you have to obtain a rental dwelling policy at that time.  A rental dwelling policy will, at a minimum, include $300,000 of liability coverage. For most that will suffice. But if the property is in certain areas of the country you may want more liability coverage. I have three rentals myself and have a total of $1,000,000 of liability on each. It cost me less than an additional $100 a year on the insurance for each property. So for me, it’s worth it. It’s also significantly cheaper not only in money, but in time spent dealing with corporate taxes and all that other additional paperwork crap.

One mistake I see quite often is that when an owner converts their primary residence or 2nd home to rental property, and they fail to update their insurance policy. This can bite when you have a claim. If the property is insured as your primary residence, but you are using it as rental property (which is other than it’s insured use) don’t be surprised when the insurance company denies your claim, and you can’t find any lawyers that will take your case.  If it’s a case of you being sued by a tenant, then to be honest and put it bluntly, you’re screwed.

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Returning Member

Adjustments to Income

Both rental properties are titled to my wife and I.  Therefore, I do approve prospective tenants.  Our joint taxable income is $160k to $165k.  None of this income is attributable to the rental properties.  The rental properties operate as a net loss when expenses, including depreciation, are subtracted from rents.