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Anonymous
Not applicable

Section 121 Exclusion Use Test for Away College Student

In WA and own a condo in CA. If I gift the condo to my son who is in midst of his 4 year college (away at TN). Would the following satisfy the "use test"

 

- He moves to the condo for a couple of months this summer and establish as home address

- Return to TN for last 2 year of college. Unknown future summer location due to internships

- File his taxes in CA as Fed/State tax treats away college student as domiciled in home address

 

Would the 2 year he spent away from the condo be still counted as "use" for primary residence?

 

I ask because tax filing follows his home address even while away at college. Does section 121 consider this differently?

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3 Replies
jtax
Level 10

Section 121 Exclusion Use Test for Away College Student

Interesting idea. TLDR; you are on iffy grounds unless your son spends more time in the condo than he does elsewhere or has very significant ties to CA and a clearly demonstrable intent to live in CA after school. Even then the fuzzy tests would not seem to be in your favor.

 

1. The address on the tax form has almost no weight in the determination of residence. It might be a factor, but it would be a small one. (See below.)

 

2. You will have to file a federal gift tax return for the gift at the fair-market value as of the transfer. (Form 709). No gift tax will be due if the condo value and the sum of your prior gifts is < about $11M. This will reduce  your federal estate "free transfer amount." That may not matter because it is so large (about $11M scheduled to go back down to $5M in a few years.) You son's basis for gain will be the same as yours. He's basis for loss will be the FMV at date of transfer.

 

3. Here are the rules for what your primary residence is. You might need to read any cases interpreting them, but it gives you the idea. You are on iffy grounds. These quotes are from 26 C.F.R. 1-1.121-1, the Treasury Dept regulations implementing the section 121 exclusion. https://www.law.cornell.edu/cfr/text/26/1.121-1

 

(b) Residence -

 

(1) In general. Whether property is used by the taxpayer as the taxpayer's residence depends upon all the facts and circumstances. A property used by the taxpayer as the taxpayer's residence may include a houseboat, a house trailer, or the house or apartment that the taxpayer is entitled to occupy as a tenant-stockholder in a cooperative housing corporation (as those terms are defined in section 216(b)(1) and (2)). Property used by the taxpayer as the taxpayer's residence does not include personal property that is not a fixture under local law.

 

(2) Principal residence. In the case of a taxpayer using more than one property as a residence, whether property is used by the taxpayer as the taxpayer's principal residence depends upon all the facts and circumstances. If a taxpayer alternates between 2 properties, using each as a residence for successive periods of time, the property that the taxpayer uses a majority of the time during the year ordinarily will be considered the taxpayer's principal residence. In addition to the taxpayer's use of the property, relevant factors in determining a taxpayer's principal residence, include, but are not limited to -

(i) The taxpayer's place of employment;

(ii) The principal place of abode of the taxpayer's family members;

(iii) The address listed on the taxpayer's federal and state tax returns, driver's license, automobile registration, and voter registration card;

(iv) The taxpayer's mailing address for bills and correspondence;

(v) The location of the taxpayer's banks; and

(vi) The location of religious organizations and recreational clubs with which the taxpayer is affiliated.

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Anonymous
Not applicable

Section 121 Exclusion Use Test for Away College Student

Got it, make sense. Best have more significant ties such as going to graduate school in the area etc. Have another son in tech and may relocate to the area so perhaps that is a better opportunity to gift+claim 121.

 

And thanks for the note on the gifting requirements to reducing annual + unified credit. Basis for gains and loss.

jtax
Level 10

Section 121 Exclusion Use Test for Away College Student

@Anonymous glad to be of help. You are thinking about the right things. Good luck.

 

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