I paid a sum to the buyers due to a legal settlement this past year, but the house was sold to these buyers 3 years prior. How should I report this settlement as a loss for this past year? I no longer have been filing a Schedule E for this property.
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It depends on what the legal settlement was meant for. Probably this amount would have increased the basis on the rental home that you sold so the way to take a credit for this is to amend the tax return from three years ago with the settlement added to the basis.
That only works if the settlement was to cover something that would have been an improvement or repair to the house at the time of the sale. If it was to cover anything else (legal fees, advertising, etc) then it is probably not deductible at all.
Thank you for that answer. I hadn’t even considered amending that return. It was a settlement to cover the repairs needed to an undisclosed septic system. So it would have been something we would have addressed prior to closing had we known it was an issue.
Is there any possibility I could handle this on last year’s return or is amending the prior return really the only allowed approach?
No. There is no way you can report that this year. You would need to amend your return from three years ago and report the repair on the Schedule E at that time. Make sure to be as detailed as possible in giving the reason why you are amending the return at this time.
Keep in mind, you may include the cost of the repair if it is part of the settlement. You may not deduct legal fees or other costs that were not part of the repair cost.
Thanks for the answer. From what I see online, it seems like I can deduct the legal expenses I paid given they were in support of my rental properties and not personal legal expenses. Can you refer me to a source that indicates this is not the case?
No, @DaveF is correct. The legal expenses incurred after the sale are not deductible against rental income. It is added to the basis to reduce your capital gain. Amending your tax return to include the additional expense and change in basis is correct.
I did a 1031 exchange when the property was sold, so there was no capital gain reported on the sale. Any thoughts on this?
Yes. If you still have the property you received in the exchange, then add the expense to this property. It's important to share all the details to arrive at the correct action.
It will be added as a depreciable capital improvement on the property received in the exchange. Be sure to give it a label that you will understand in the future when your current rental is sold or traded. See the 'bought-up' rules below.
Depreciation Rules:
The basic concept of a 1031 exchange is that the basis of your Old Property rolls over to your New Property. In other words, if you sold your Old Property for $100,000, and bought your New Property for the same, your basis on the New Property would be the same. It makes sense then that your depreciation schedule would be exactly the same, and does not change! In other words, you continue your depreciation calculations as if you still own the Old Property (your acquisition date, cost, previous depreciation taken, and remaining un-depreciated basis remain the same).
If you "bought-up" in your exchange (your New Property cost more than you sold your Old Property), the answer is easy – you treat the buy up part as you would a new addition to an existing property. In other words, you treat the amount of the buy-up the same as you would the cost of construction, for example, of a garage added to an existing house – the cost is the amount of the buy-up; the date you start depreciating it is the date you purchased the new property; and the depreciation method you use is the method most appropriate for that type of property in the year you bought the New Property (regardless of the method you used for the original house). If you think of it this way, then it's easy, even if your property is a large office building or a more complex purchase.
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