Sold our home 11 months after buying it as we unexpectedly were placed with 2 foster children that we adopted 8 months later. Does this count as unforeseen circumstances?

[m_johnson24]

My husband and I started building a home May 2020. 3 bed, 2 bath with office. We had a friend living with us "rent free" at this time, so we had one guest room and an office for my husband who was forced to work from home due to COVID. After discovering we had infertility issues, we started the process of becoming licensed to foster children Sept. 2020. We moved into our home and officially closed on the sale Dec. 2020. February of 2021 we had 2 older children (siblings) placed with us through foster care. My husband started having to share his office with our daughter and our son had his own room and our friend had his own room. Per foster care requirements the children were not allowed to share a room.  We found out Sept. 2021 we were eligible to adopt the children and we moved forward with this, but knowing we needed a 4 bedroom house, we sold our home and are renting it back until Oct. 2022 when our new house will be done being built.

Does needing more rooms due to the unforeseen adoption of our children count as unforeseen circumstances for the purpose of not paying short term capital gains on our home?

[DMarkM1]

Yes, according IRS Publication 523 the situation you describe would fall under other unforeseen circumstances leading to a partial exclusion of gain on the sale of your main home. Below is an extract to review.

"Even if your situation doesn’t match any of the standard requirements described above, you still may qualify for an exception. You may qualify if you can demonstrate the primary reason for sale, based on facts and circumstances, is work related, health related, or unforeseeable. Important factors are:

• The situation causing the sale arose during the time you owned and used your property as your residence.

• You sold your home not long after the situation arose.

• You couldn’t have reasonably anticipated the situation when you bought the home.

• You began to experience significant financial difficulty maintaining the home.

• The home became significantly less suitable as a main home for you and your family for a specific reason."

In the "Wages and Income" tab, the "Less Common Income" topic, you will find the "Sale of Home" interview.  In that interview you will be able to select "Other unforeseen circumstances" to qualify for a partial exclusion. TurboTax will calculate the exclusion based on your entries for dates etc.

Be sure to keep good records of the situation in your tax files.    

[Mike9241]

from the regulations

(e) Sale or exchange by reason of unforeseen circumstances -

(1) In general. A sale or exchange is by reason of unforeseen circumstances if the primary reason for the sale or exchange is the occurrence of an event that the taxpayer could not reasonably have anticipated before purchasing and occupying the residence. 

 After discovering we had infertility issues, we started the process of becoming licensed to foster children Sept. 2020. We moved into our home and officially closed on the sale Dec. 2020. February of 2021 we had 2 older children (siblings) placed with us through foster care. 

this seems inconsistent with the reg. but this is only one factor.

reg 1.121-3

(b) Primary reason for sale or exchange. In order for a taxpayer to claim a reduced maximum exclusion under section 121(c), the sale or exchange must be by reason of a change in place of employment, health, or unforeseen circumstances. If a safe harbor described in this section applies, a sale or exchange is deemed to be by reason of a change in place of employment, health, or unforeseen circumstances. If a safe harbor described in this section does not apply, a sale or exchange is by reason of a change in place of employment, health, or unforeseen circumstances only if the primary reason for the sale or exchange is a change in place of employment (within the meaning of paragraph (c) of this section), health (within the meaning of paragraph (d) of this section), or unforeseen circumstances (within the meaning of paragraph (e) of this section). Whether the requirements of this section are satisfied depends upon all the facts and circumstances. Factors that may be relevant in determining the taxpayer's primary reason for the sale or exchange include (but are not limited to) the extent to which -

(1) The sale or exchange and the circumstances giving rise to the sale or exchange are proximate in time; this seems to apply to your situation

(2) The suitability of the property as the taxpayer's principal residence materially changes; this seems to apply to your situation

(3) The taxpayer's financial ability to maintain the property is materially impaired; no

(4) The taxpayer uses the property as the taxpayer's residence during the period of the taxpayer's ownership of the property; this seems to apply to your situation

(5) The circumstances giving rise to the sale or exchange are not reasonably foreseeable when the taxpayer begins using the property as the taxpayer's principal residence; to me and a big question mark 

(6) The circumstances giving rise to the sale or exchange occur during the period of the taxpayer's ownership and use of the property as the taxpayer's principal residence.  this seems to apply to your situation

the IRS does not require that all six factors be met, so my opinion is you would qualify for the partial exclusion. I am not the IRS and others may disagree with me.

the only way to make sure is to request an IRS Letter Ruling