Section 121 of the Internal Revenue Code allows the exclusion of a realized capital gain of up to $250,000 ($500,000, if married filing jointly) from income if it is the sale of the taxpayer's principal residence. Form 1099-S, Proceeds from Real Estate Transactions is used to report any sale of a residence that exceeds the gain exclusion. If the gain is wholly excludable, then no Form 1099-S needs to be filed (IRS Revenue Procedure 2007-12).
To qualify for the exclusion:
- you must have lived in the house for at least 2 years out of the previous 5 years before the sale (12 months for the mentally or physically disabled)
- the home was not acquired through a like-kind (§1031) exchange or received as a gift from a donor who acquired it as like-kind exchange
- you did not claim the §121 exclusion within the prior 2 years
- and the expatriate tax does not apply to you
Grantor trusts and single-owner entities can also claim the exclusion. A gain on a conversion, such as when a home is destroyed or condemned, can also be excluded.
Any amount above the exclusion amount is subject to the long-term capital gains tax that, starting in 2013, depends on income. For those in the following tax brackets, the applicable capital gains rate is:
- 15% or lower: 0%
- 25% - 35%: 15%
- 39.6%: 20%
Additionally, beginning in 2013, any gains above the exclusion amount will also be subject to the new Net Investment Income Tax, which can add as much as 3.8% to the applicable gain for taxpayers who earn, both from work and from investments, at least the threshold amount (joint filers: $250,000, everyone else: $200,000).
The period of ownership and use can be discontinuous as long as they satisfy the 2- and 5-year test. Short absences, such as for vacations, are included in the time of use test.
Example: An older couple, with an income of $500,000, owns a main residence in which they lived 25 years. They also own a beach house that they owned for 15 years. They plan to retire to Florida, but before they do, they sell their main residence for a realized gain of $600,000. They can exclude $500,000 of that gain from income, but they must pay the applicable long-term capital gains tax of 20% plus the net investment income tax of 3.8% on the remaining $100,000, resulting in a total tax of $23,800 on the non-excluded portion. Then they move into their beach house and live there for 2 more years. Afterwards, they sell their beach house for a gain of $300,000, all of which is excludable from income.
An involuntary conversion occurs if a property is destroyed or condemned. If a gain was postponed under §1033, because of an involuntary conversion of a principal residence, then the holding period of the replacement residence includes the holding period of the previous residence.
If a homeowner becomes incapacitated, and must spend time in a licensed care facility, then the homeowner can still exclude the gain if the principal residence was used at least 1 year during the 5 years preceding the sale. The 2-out-of-5 year ownership test still needs to be satisfied, however.
The years of ownership test can be suspended for up to 10 years by military and Foreign Service personnel, Peace Corps workers, and intelligence officers that are on official extended duty.
If the taxpayer has more than 1 home, then only the principal residence qualifies for the exclusion, which is generally determined by the length of occupancy of each residence, but the IRS may also consider the taxpayer's place of employment, addresses on driver's licenses, automobile and voter registrations, and the mailing address used in correspondence. Undeveloped land may also qualify for the exclusion if it is adjacent to the principal residence and was used as part of the residence, and both land and the residence are sold within a 2-year period. However, the exclusion limit applies to both the land and the principal residence, not to each independently.
The exclusion can also be applied to mobile homes, trailers, condominiums, and even houseboats if they were used as a principal residence. However, if the home is moved to a different location, then any sale of the vacant land does not qualify for the exclusion. However, an investment in a retirement community only qualifies if the taxpayer receives equity in the property. For the tenant stockholder of a cooperative, the ownership requirement requires the ownership of the stock and the use requirement applies to the unit that the stockholder owns.
The §121 exclusion can only be used once every 2 years. This is to prevent taxpayers from buying multiple residences to earn tax-free income.
Because of the 2-year exclusion period, a taxpayer may choose to not exclude the gain on a residence if he intends to sell another residence that will also qualify for the exclusion but would be within the 2-year period of the 1st sale. A taxpayer may do this if she expects the gain may be greater on the 2nd sale.
Joint owners may each claim the $250,000 exclusion for their share of the gain.
Married Couples Can Claim a $500,000 Exclusion
A married couple must satisfy the following requirements for the $500,000 exclusion:
- married filing jointly;
- either spouse owned the residence for at least 5 years;
- the residence was a principal residence for both spouses for at least 2 years;
- neither spouse claimed a §121 exclusion within 2 years of the sale of the principal residence.
If only one spouse lived in the house as a principal residence, then only that spouse can claim the $250,000 exclusion. If a married couple has separate residences, then each may claim a $250,000 exclusion on the sale of their residence, whether they file jointly or separately.
United States citizens who have renounced their citizenship or long-term residents who have ended their residency for the purpose of avoiding United States tax cannot claim the exclusion.
Death of Spouse If the spouse dies before the sale of the residence, then the surviving spouse can add the years that the decedent lived in the house as a principal residence, and can also still exclude a $500,000 gain. The surviving spouse is considered to have the property at least as long as the decedent unless the spouse remarries before the sale. The surviving spouse must file a joint return, however, in the year of the spouse's death. The surviving spouse will still qualify for the $500,000 exclusion if the property is sold within 2 years of the deceased spouse's death. Note also that the portion inherited from the deceased spouse will receive a stepped-up basis, which will further reduce any taxable gain. This stepped-up basis will equal the fair market value (FMV) of the portion of property on the date of death or, if the personal representative so chooses, the FMV of that portion 6 months afterward. A surviving spouse in a community property state will receive a stepped-up basis for the entire property. The $500,000 exclusion can also be applied if the residence is sold within 2 years of both spouses' death if the couple would have qualified otherwise.
Divorce If a spouse receives a residence under a divorce decree, then her time of ownership and time of use is added onto the ex-spouse's time of ownership and use. If one spouse moves out pursuant to a divorce or separation decree, then the relocating spouse can continue to claim use and ownership for as long as he maintains an ownership interest in the property, and as long as the remaining spouse continues to use the residence as a principal residence.
Prorated Maximum Exclusion
If the taxpayer cannot satisfy the use and ownership tests to claim the full exclusion amount, then a partial exclusion equal to the amount of time that the taxpayer does satisfy the use and ownership test divided by 2 years can be claimed if the reason for the sale is because a change of employment, health problems, or some other unforeseen circumstances either to the taxpayer, a close family relative, or to other members of the house who have an ownership stake in the house.
So if you sell your house at a gain of $140,000 because of a change in job location, but only lived in the house for 1 year as a principal residence, then you can claim 50% of the exclusion amount, or $125,000. Hence $125,000 would be tax-free but the remaining $15,000 gain would be taxable.
Safe Harbor for a Prorated Exclusion
Generally, to satisfy the requirements for a prorated exclusion, the IRS considers the facts and circumstances of the situation to decide whether the applicable rules apply. However, the IRS does provide a bright line to distinguish whether the rules allow the prorated exclusion. The change of employment rule is satisfied if the taxpayer's new job location is at least 50 miles further than the old job location from the primary residence and the taxpayer was using the primary residence at the time of the job change. The change of employment includes working for the same employer but in a different location or a change in location for a self-employed worker. The safe harbor can also be satisfied if an unemployed taxpayer obtains a job that is more than 50 miles away from the sold residence.
When the IRS considers facts and circumstances, the most important factor will be the primary reason for the home sale. Thus, the primary reason for the sale must have been because of the change of employment, deteriorating health, or other unforeseen circumstances.
The health rule is satisfied if the change in location was to better manage the health problems of the taxpayer or a close relative, but not just because the taxpayer wanted to move to a healthier environment. However, a safe harbor exists if it was done on the recommendation of a doctor. So if the taxpayer sells his home to care for an ill parent, then the rule is satisfied.
Unforeseen circumstances includes any factor that would make the house unaffordable, or a change in financial status that would make it difficult to maintain the home, such as the involuntary conversion of a home, or damage from disasters; or death, divorce, or legal separation or even a change in employment with a reduced income making it hard for the taxpayer to afford the house. The unforeseen circumstance must not have been anticipated before the house was bought and occupied. So, for instance if a unmarried couple buy a residence so that they can live together, but later they break up, then this would be considered an unforeseen circumstance, especially if the remaining taxpayer is unable to afford the housing by herself.
Figuring Gain
The gain on the sale of the house is considered the sale price minus any selling costs, such as a real estate brokerage commission, minus the adjusted basis of the property. Theadjusted basis of the property includes the purchase price plus expenditures for improving the property. It does not include expenditures for just repairing the property. Settlement fees and closing costs also add to the adjusted basis of the property. However fees associated with obtaining a mortgage do not affect the basis of the property, since those fees are charged for getting the loan, not for the purchase of the property.
Figuring Adjusted Basis
The capital gain or loss is calculated thus:
Realized Gain = Sale Price – Selling Costs
Capital Gain or Loss = Realized Gain – Adjusted Tax Basis
Hence, anything that changes that taxpayer's basis in the property will affect the gain or loss realized. Expenditures that increase the adjusted basis include:
- improvements that have a useful life of more than 1 year;
- costs of restoring damaged property.
Decreases in the cost basis include:
- postponed gains from the sale of a previous home before May 7, 1997;
- any losses that were deducted from ordinary income tax;
- insurance payments for casualty losses;
- depreciation claimed for a home business or rental purposes;
- claimed tax credits for home energy improvements that increases the basis of the home;
- energy conservation subsidies that were excluded from income; and
- receipts from a public utility for energy conservation measures that was excluded fromgross income.
Gains postponed under prior law rollover rules decrease the basis because taxes were not paid on the gains previously.
Improvements to a home only increase the basis if they are still part of the home. For instance, if you spent $4000 to paint your house 10 years ago, and then painted the house again just before the sale, then the previous cost of the painting is not added to the basis.
Recordkeeping Records of all adjustments to the basis of the home, including any receipts of costs, and any Form 2119, Sale of Your Home that was filed to postpone gain from a previous home, should be kept for at least 3 years after the due date of filing for thetax year of the home sale.
Business Use Of The Home
If you have a home office that is part of the dwelling, then the gain on that part of the dwelling is also excludable along with the rest of the residence. However, any depreciation claimed on the property after May 6, 1997 is not excludable and must be reported onSchedule D, Capital Gains and Losses as unrecaptured §1250 gain, which is taxed at the lower of 25% or your marginal tax rate.
Example: You sell your home for a gain of $20,000: $5000 was claimed for depreciation on a home office. Therefore, only $15,000 is excludable from income. The $20,000 gain and the $15,000 exclusion are reported on Part II of Form 8949, Sales and Other Dispositions of Capital Assets, and Schedule D, Part II. The $5000 depreciation recapture can be figured using the Unrecaptured Section 1250 Gain Worksheet in the Schedule D Instructions, then entered on Line 19 in Part III, Summary section of Schedule D, Capital Gains and Losses.
No loss on the sale of a personal residence is deductible. However if part of the home was rented out or used for business, then the allocable space reduced by the allocable time that it was used for business is deductible.
When a residence is converted to rental property, then the tax basis on the conversion date is the lower of the adjusted basis or the fair market value. Generally, if a residence was converted to rental property only a few months before the sale, then whether any losses are deductible depends on whether the rental returns a profit and whether the lease prevented the owner from reoccupying the house during the lease period.
If a house was bought for resale, then losses are deductible, even if the owner occupied the house for several months before the sale. In these cases, it is presumed that the owner has no intention of living in the house as a primary residence, but occupies the house to prevent vandalism and to keep the house in good shape to sell. Deductible losses can also be claimed for a residence that was acquired by gift or devisement, if the donee had no intention of living at the residence but sold it or rented it out shortly after acquiring it.
If the principal residence is owned by a partnership whose partners are married, then the gain on the sale cannot be excluded but must be recognized.
Nonqualified Use of a Residence
If a residence is not used as a primary residence, then it is a nonqualified use except:
- if the applicable time period was before 2009;
- any time period after the property was used as a primary residence;
- any time period in which the taxpayer was on qualified official extended duty as a member of the Armed Forces, Foreign Service, or as an intelligence community employee;
- any period of less than 2 years that was a temporary absence caused by a change of employment, health conditions, or other unforeseen circumstances.
The gain on a residence must be divided ratably between the nonqualified use period and the qualified use period during the 5 years before the sale. Only that portion attributable to the qualified use period can be excluded from income.
Example: You buy a house for $400,000 in 2010. You rent it out for the first 2 years, then you move in and use it as your primary residence for 2013 and 2014. You use part of the house for a home office in claiming the total depreciation of $20,000 for 2 years. At the end of 2014, you move out, but you only sell it on January 1, 2016 for$620,000.
Tax Analysis: Since you rented the property out for the first 2 years, only 3 out of your 5 years of ownership is a qualified use. Since you deducted a total of $20,000 for depreciation in 2013 and 2014, this must be subtracted from your excludable gain before the allocation of the gain to the qualified use period:
- Realized Gain = $620,000 – $400,000 = $220,000
- Gain – Depreciation = $220,000 – $20,000 = $200,000
- Amount of Gain Allocable to the Qualified Use Period = 3/5 × $200,000 = $120,000
Note that even though you did not live in the house in the last year of your ownership, it is still considered a qualified use since that was after you had used the house as a primary residence.
Allocable Gain on Separate Structure Used for Business Cannot Be Excluded
If the residence has a separate structure from the dwelling unit that was used for business or rental after 2008, then such use is considered a nonqualified use that is subject to the nonqualified use rules discussed above. Thus, the gain attributable to the nonqualified structure and that is allocable to the nonqualified use period will be taxable even if the 2-year use test is satisfied.
If a separate structure was used for business or rental for more than 3 years during the five-year period previous to the sale, then the gain allocable to the separate part is not excludable since it does not satisfy the 2-year test. A taxable gain must be reported onForm 4797.
