Key Background Concept: Tax Basis
The "Basis" of property measures Tp's investment
Tax equivalent (roughly) of "book value", as adjusted for a variety of items
COST RECOVERY of Basis when Property is sold
When property is sold, gross receipts aren't income. Must subtract basis from proceeds to calculate taxable gain or loss, because no there's profit until there is a return of capital.
Tip: Basis can be thought of as "previously taxed income"
COST RECOVERY of Basis thru Depreciation
Investment in plant and equipment generates non-cash charges (deductions). Part of basis is being subtracted from each year's income, for "wear and tear" over life of asset.
Cost Recovery for Buildings and Equipment
How the rules evolved
From "reasonable allowance" to "Modified ACRS". Still legacies of past systems - e.g. calculations for buildings bought in 1980, or 1985
Issue: How much and how long?
Inherent problem: need for estimates and predictions, which can mean unending disputes between Tp and IRS
Issue: How fast and how precise?
These choices are inherently arbitrary: one as good as another
How MACRS works
IRS Guide: How to Depreciate Property"
Applies to "Tangible property", "placed in service" after 1986
Each asset gets a "class life", based on its industrial census category, and each class life "maps" into a shorter "applicable recovery period"
Examples: 5 for cars & computers. 7 for most equipment, 27.5 for residential buildings and 39 for commercial
Determine what "applicable convention" to use, based on the time the asset was placed in service. Normally it's mid-year for equipment and mid-month for Real Estate, but sometimes must use mid-quarter for equipment
Then choose appropriate lookup table for the applicable recovery period and convention. These are based on an "applicable method" (2xdbl for short lived equipment, 1.5x dbl for 15+ year property, straight line for buildings)
MACRS Special purpose alternative computations:
Alternative depreciation: s/l over class life and 40 yrs for realty. Used for foreign property, prop leased to nonprofits, listed property, or if Tp so elects.
Modified ADS: 1.5 x db replaces 2xdbl for AMT calculations
When to use Midquarter tables for equipment: if 40% of Tp's equipment for the year was placed in service in the last quarter, then all equipment that Tp placed in service during that year uses midquarter tables all its life.
Note: California corporate tax still uses pre-1981 "old Federal" system
Note: the Tax Response to 9/11 Terrorism
30% asset expensing up front and depreciate the rest, for equipment assets in service 9/01 thru year 2004. Also temporary increase in the automobile depreciation limits. Reason: juice up business investment before the election via a temp[orary increase in the size of the tax shield
The Limited Expensing Option
Immediate deduction as an alternative to depreciation. Generally for equipment, not buildings or furnishings. Maximum is $24,000 per TP (periodic increases scheduled in the Code)
Is for small business: phased out as total equipment cost rises above $200K
Can be problems if use changes from business to personal before the class life is over: "Recapture"
The special business automobile limits
May deduct auto expense using mileage (36.5 cents per mile in 2002). Recordkeeping is required
Or use actual costs. If mixed use, treat car as 2 assets; depreciate the business portion but not the personal portion.
Maximum depreciation limited to what it would be on a car costing $15,300. Tables limit lease payment deductions based on this # as well.
If business part over 50%, use MACRS rules, and if 50% or less, use ADS rules.
If start above 50% and fall below: recapture by recomputing for all prior years using the ADS rules
Cost Recovery for Intangible Property
Amortization depends on a "useful life"
Can't depreciate land
Can amortize lease acquisitions, loan points (if special residence rule doesn't apply)
Purchased intangibles
Issue in the acquisition of a business: does goodwill/ residual assets have a useful life? Law now provides a15 year straight line writeoff. Software is 3 yrs s/line
Compare with recent changes in GAAP
Natural resources
Depletion allowances: based on cost, or (oil & gas) limited use of percentage of value depletion
Business Bad Debts
Accrual method taxpayers
For accrued receiveables, the tax deduction occurs when specific items are charged off as uncollectable. Concern is that a % allowance would let Tp overdeduct. This causes a book-to-tax timing difference
Cash method taxpayers
No deduction for failure to collect a receiveable that was never included in income
Non-Business Bad Debts
Deduct as short term capital loss only when completely worthless
Esp. with related parties need to show reasonable commercial attempts at collection
Passive Activity Losses
Background: The problem of tax shelters
Mass market tax shelters for individuals were effectively shut down by law changes in 1986. Sec 469 was the key.
The problem now is sophisticated corporate shelters, using hairsplitting technicalities, just short of fraudulent, being peddled by big-4 partners who ought to know better. Treasury/Tax reformers have been counterattacking, but the Big 4 have many political friends
The classic patterns involved manipulating timing to get a present value savings, ordinary deductions balanced by capital gains, and lots of leverage. The "Cost" of a depreciable asset generally includes debt financing, so spend Other People's Money and get current noncash losses to offset other income.
- eg. invest 100, borrow 900, depreciate: deductions exceed cash investment
- It will reverse in future (Y exceeds available cash, since money is used for the loan payoff)
- but people are short-term: don't understand accruals, and it was terrible for compliance
Sheltering with non-recourse ("walkaway") debt: the "million dollar watch" deals. 1970's response was the "at-risk rules" (overemphasized in text) which only nibbled at the problem.
Sec. 469 as the solution to tax shelters: overview
Group shelter-type activities, called "Passive Activities." Net all income and expenses, and apply a "filter", which puts a net gain in current income, but blocks a negative number. The excess passive activity losses are deferred to future years, and generally can be used only to offset PA income
Defining the target: "passive activity".
Rentals are generally PA's (except for certain real estate professionals), as are limited partnership interests. Otherwise, look to various factors, esp. the amount of time the Tp spends on the activity
Separate out investment type income and expense, to prevent "stuffing" (using PAL's to offset, e.g. T-bill interest)
Trapping and carrying forward the overall losses
When a PAL is sold, any loss associated with it can be taken (tho the capital loss carryover rules may still defer the deductions if loss is both passive and capital.) This means that losses must be tracked activity by activity, not just overall.
Any deferred losses are allocated among the subgroup of activities with losses.
The small landlord loophole
If Tp is a "small landlord" (owns > 10% of rental and is 'active" in management), then a maximum of $25K loss (total: not per property) passes thru filter and can offset other current income. The $25K allowance phases out as AGI (not counting the allowance) goes from $100K to 150K, so for $2 in Y, $1 deduction is lost/deferred
Other Relief rules
- Allowance of the credit equivalent of the SLL
- Real Estate Professionals can use rental RE losses vs nonrental RE income
notes and format (c) 2001-02 Robert H. Daniels