How would the IRS classify me? I'd prefer to be treated as a business owner.
I am a landlord of 2 properties. A condo and a multifamily building.
I do all the following myself: lease negotiations, repairs (major and minor), trash out, etc.
My tenants are fairly stable. 2+years tenancy.
I don't know if this matters: but I gut renovated the condo and am currently gut renovating one of the units in the multi-family myself. I'm basically a contractor - but I only work for myself. 40 hours a week x 50 weeks a year.
I've read a book titled "Every Landlord's Tax Deduction Guide" by Stephen Fishman. Based on the excerpts below, I feel it could be argued that I am a Business owner. I understand the IRS doesn't follow Mr. Fishman's book for classification (😀), but he is providing some guidance on the issue.
Here's an excerpt from his book on the issue:
Are You a Business Owner or an Investor?
What’s the difference between an investor and a business owner? It’s
not their motivation—they both want to earn a profit. The difference
is that business owners earn their profits by actively running a business,
either themselves or with the help of others they hire, such as managers.
Investors are passive—they put their money in someone else’s business
and hope their investment will increase in value due to the other person’s
efforts. Or, they buy an item like land or gold, and then sit and wait for it
to increase in value.
Owning rental property qualifies as a business if you do it to earn a
profit and work at it regularly, systematically, and continuously. (Alvary
v. United States, 302 F.2d 790 (2d Cir. 1962).)
Example : Edwin Curphey, a dermatologist, owned six rental
properties in Hawaii. He converted a bedroom in his home into an
office for his real estate activities. Curphey personally managed his
rentals, which included seeking new tenants, supplying furnishings,
and cleaning and otherwise preparing the units for new tenants.
The court held that these activities were sufficiently systematic
and continuous to place him in the business of real estate rental.
(Curphey v. Comm’r., 73 T.C. 766 (1980).)
However, you don’t have to do all the work yourself: You can hire
a manager to help you and still qualify as a business as long as the
manager or other person you hire works regularly, systematically, and
continuously.
Example : Gilford, her two sisters, and other relatives jointly owned
eight apartment buildings in Manhattan. They hired a real estate
agent to manage the properties and pay each family member his or
her share of the net income. Gilford was found to be in business
even though she spent little or no time managing the buildings.
The court reasoned that the ownership and management of the
buildings was a business because it required considerable time and
effort by the real estate agent over several years. Because the agent
acted for Gilford and was ultimately under her control, Gilford was
in business through her agent. (Gilford v. Comm’r., 201 F.2d 735
(2d Cir. 1953).)
There is no specific number of rental properties or rental units you
must own for your rental activity to qualify as a business. In one case,
a married couple was found to be engaged in business even though all
they owned was a 25% time-share interest in two condominium units.
And, the actual work of renting out the units and keeping them in repair
was performed by a management company that acted as their agent.
(Murtaugh v. Comm’r., T.C. Memo 1997-319.)
