I co-owned a home with my brother since 1990s. Both of our names are in the title and tax forms. I moved out of the house around 2010 and the new home is considered my new primary residence, while my brother still lives in the house and it is his primary residence. If we sell the house for more than $400,000 profits (splitting the profit would be $200K each), would I be able to take the exclusion law for my half of the profit even though I technically am not using this home as my primary residence? I have never sold any homes before that so I have not used the exclusion law before. For my brother, since it is less than $250K in profit, he would be able to use the exclusion in capital gain. All tax forms, titles, are still under our names still. Thanks
No ... only he can use the exclusion on his half ... you have not lived there for 2 out of the last 5 years. Your new home is certainly homesteaded as your personal residence. Talk to a local RE attorney and/or a tax professional to see if you may be able to quit claim the home to him BEFORE the sale and then you will only need to file a gift tax return on the gift of equity where you would owe no taxes.
....would I be able to take the exclusion law for my half of the profit even though I technically am not using this home as my primary residence?
No, you will not be eligible for the exclusion since you did not use the home as your main home for the requisite period.
since the property has not been your primary residence in any 2 out of five years before the sale, you are not entitled to any exclusion.
your brother should be entitled to the full exclusion
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