Table Of Contents
In this episode, Brandon Hall and Thomas Castelli discuss how to use capital losses (tax-loss harvesting) and passive losses to reduce capital gains taxes from the sale of your rental real estate.
This episode is sponsored by our free Tax Smart Investors Facebook Group.
This podcast has been transcribed using AI, please excuse spelling, grammatical, and other errors.
Brandon Hall 0:00
You're listening to the real estate CPA podcast, your source for all things real estate, accounting and tax. Here we reveal our secrets that can save you 1000s in taxes, streamline your accounting process and help grow your business. Stay tuned to hear insightful interviews with industry experts, successful real estate investors and current clients on what strategies they use to grow their business, and how they steer clear of Uncle Sam.
Thomas Castelli 0:30
Hey, everybody, welcome to the next series on The Real Estate CPA podcast, we're going to be discussing exit strategies. As you know, one of the biggest taxable events you're going to have in real estate is when you exit your property. So we're going to go through some tax efficient exit strategies. In this first episode, we're going to be covering tax loss harvesting, and how to use passive losses to offset capital gains on the sale of your real estate assets. So your rental assets to be specific
Brandon Hall 0:56
it gets before we even start jumping into that, Tom, why would somebody even care about exit strategies? Why can I just sell my real estate? And just, you know, whatever the gain is, I pay taxes on and call today?
Thomas Castelli 1:08
Yeah, I mean, sure, you could, you could do that capital gains tax rates around 15% and 20%, if you make over around $501,000 per year. Now on top of that, you have the net investment income tax of 3.8%. So you're paying somewhere between 18.8% and 23.8%, in taxes per dollar in taxes when you sell your rental real estate. And instead, if you use some of these strategies, what you could do is avoid paying those taxes, take your money back today, and reinvest it and earn a rate of return on money you would have otherwise paid to the government. And as we'll discuss in some of these strategies, the time value of money can be very lucrative, like for example, say you use one of these exit strategies, and you're able to save $100,000 in taxes, that $100,000 reinvested the 8% return over 10 years is going to return you around $215,000. So
Brandon Hall 2:04
can you go over that? Again, I think that that's the that's the critical piece there. So say that
Thomas Castelli 2:09
again. Yeah, so it's all about the time value of money, right? So basically, $1 today is worth more than $1 tomorrow. And the reason for that is because you could theoretically reinvest that money or actually go and reinvest that money and earn a rate of return. And in this example, let's just say you have $100,000 in capital gains tax that you would have to pay as a result of selling a highly appreciated asset such as real estate, you can defer or eliminate that tax. And you could take the $100,000 back in your pocket, and you can go reinvest it. And if just as an example, an 8% return, which is generally very achievable in real estate, even this market, we're in today, an 8%, return over a 10 year period, compounded is going to give you $215,000. So that's $115,000 that you didn't have before that you wouldn't have if you just pay the government pay their taxes. And one of the best things about real estate is you have all these different strategies that you can use to minimize or eliminate taxes on the sale of your assets, which isn't always there in other asset classes or businesses that you may be investing in. So that's what makes real estate such a lucrative investment. And being that the exit is where you're probably going to recognize the biggest gains or the biggest taxable events for your real estate. That's why you want to pay attention to what exit strategies are available to you. So you can decide, you know how you can go about minimizing your taxes on that exit, again, so you take advantage of the time value of money,
Brandon Hall 3:40
right? So the whole pre frame to this entire series, is that the time value of money theory says that $1 today is worth more than $1 tomorrow. And that makes sense if you think about inflation and the cost of goods. So a gallon of milk today might cost $3 a gallon of milk next year might cost $3.03. So if I have the same $3 in my bank account, and I don't do anything with it, and it just sits in my bank account, well today it can buy that gallon of milk, right, but a year from now, I have that same $3 And now the milk costs $3.03. And now I cannot buy that milk. So the time value of money theory is all about saying that you should optimize every dollar that you have today, because you lose your purchasing power over time due to inflation. And one way to combat that loss of purchasing power is to reinvest the capital. And so if you are going to be selling your rental real estate or selling any sort of asset at a large gain, the idea is can I avoid tax can I avoid paying tax in today's dollars right I want to pay tax and future dollars that have been chipped away at with inflation so I don't want to pay Tax today, I want to pay tax at some later point because I want to take those tax savings that I otherwise would have paid today. And I want to reinvest them, I want to grow that tax bill that eventual tax back, I want to reinvest it, I want to grow it. So I can earn money. People do this with cost segregation studies, right? Like this a great example Cost Segregation studies. So I buy a new property, a million dollars, and I get a cost segregation study done. And I get a $250,000 tax loss, thanks to bonus depreciation and all that stuff. But $250,000 tax loss might save me $70,000 in taxes. So by buying this million dollar property, like getting the cost segregation study done, today, I pay $70,000 less in taxes, which just means that I have $70,000 to reinvest. Now I have to pay that $70,000 Back at some point, because there's depreciation recapture and all that. But the point is, is that today, I have $70,000 to reinvest. So I reinvest that $70,000, I let it build for five to seven years, we sell the asset seven years later, but I've earned a 12% return. And I've doubled that $75,000. Now I have $150,000, that has been created from this 75 or $70,000 in tax savings. And now I go pay the $70,000 in tax when I sell seven years later, but now I'm left with an additional 70 $75,000. So the whole point is to keep money in your pocket reinvest it knowing at some point that I'll have to pay it back. You know, I think that there's there's not a whole lot of strategies out there that allow you to actually eliminate tax, right, so so we're trying to just kick the can down the road, for the most part, we're going to talk about some elimination strategies, we're going to kick the can down the road, so that we can let that tax savings accrue so we can let it builds, we can let that return on investment really sink in there for us. And 510 20 years later, we're sitting on a lot of capital, thanks to these tax deferral strategies.
Thomas Castelli 7:05
Absolutely, absolutely. All right. So with that all in mind, I think we should maybe just start diving into some of these strategies start uncovering, you know what you can do. And the first one is something that if you invest in the stock market, you're familiar with tax loss harvesting. And that's just the principle that capital gains can be offset by capital losses. So if you have a capital gain from the sale of real estate, or any capital asset, like a stock, you can just take capital losses and offset it. And the challenge with this strategy is that you actually have to sell assets at a loss or have a capital loss to offset and usually you don't want to find yourself in that position. So this strategy is typically used, if you have an asset, that is seriously not going to recover in value, maybe you made a bad investment in real estate, maybe you made a bad stock investment or another financial asset that you know is now underwater is below the price you originally bought it for. And it's unlikely to return to its original value or more. So you decided you know what, it's time for me to cut my losses. And I'm going to go ahead and sell this asset at a loss, and you're going to have a capital loss. And the way capital losses work is they're going to offset capital gains, if you don't have capital gains offset in the year that you sell that asset, then you're going to be able to take up to $3,000 of that capital loss against your ordinary income, the rest is going to carry over to the next year. And you know, continue from there. So basically, the way this strategy works is that you sell your assets that are in a loss position, you recognize that capital loss, and then you use it to offset a capital gain, whether it be in that year, or in a future year. So I guess what I'm trying to say is to use this strategy, you have to look at your assets and say, if I have assets in a loss, will they recover? If the answer's no, they're unlikely the probability than recovering is extremely low, then you go ahead and sell those. And then you can use those to offset the capital gain at some point in the future. Yeah.
Brandon Hall 9:09
And so another part of the tax loss harvesting strategy is it this might be relevant for anybody that that sold during the April I think it was April dip and 2023 with COVID coming out and stocks tanking and everything if you hold a stock, so you've got a position in some company, you own their stock, and you're bullish long term. But in the short term in the last 12 months, the stock has taken a dip. So it's dive but you're still bullish long term. You believe in the vision you believe in the company, you believe that this is the new thing, you know, whatever that is, if you're in a loss position by the end of the year, you can sell the stock and immediately rebuy it and that will create a tax loss that You can then utilize to offset tax gain from any other capital asset that you've sold at a positive game. Or like Tom said, you can use $3,000 of that tax loss, and the remainder will carry forward to be utilized at some point. So the point is, is that if I put $100,000 in to this stock, and it's decreased in value, and now it's December, and I'm looking for some tax strategies, one thing that I can do if I'm sitting on now, let's say I've got a $20,000 loss that I haven't actually recognized. Well, I'm going to go recognize that loss, I'm going to sell the stock, I'm going to get a $20,000 loss, but I'm gonna immediately rebuy the stock if I'm bullish long term, right. So now I've just created a $20,000 loss that I can claim, or I could sell my other stock that's winning, I could sell $20,000 worth of that at a gain to offset the loss that I just created. So that that was also something you're able to do. Now, if you're using like those robo advisors, there's a few of those online, where if you have a financial advisor, most likely they're doing this for you. So a lot of this can be automated, depending on who what brokerage you use, but most likely, they're doing these types of things for you, as you're investing along the way.
Thomas Castelli 11:15
Yeah, and I'm gonna say tax loss harvesting isn't really a huge strategy we see people often use in the real estate space. It's it's one of those things you want to be aware of to have in your tool belt, just something to consider when you're selling properties, if you're able to utilize it great. If not, it's not something you're necessarily going to plan for, I'm not going to plan to have a capital loss. It's, it's something that if it happens to you, it happens and you can lock it in.
Brandon Hall 11:38
And I guess I should also add one caveat that with what I just talked about liquidating and then rebuy, you do have to be careful of wash sales. So you do have to be aware of that wash sale rule. And that is when you sell a security and then rebuy it within 30 days that loss, you actually won't be able to recognize the value of the space without if you do if the time it. But you can you can execute it if you time it effectively,
Thomas Castelli 12:01
for sure, for sure. So definitely watch out for that. But you know, a strategy we see more often is used, you know a lot in real estate is going to be using passive losses to offset your capital gains on the sale of your rental real estate, or even syndicates investments you have in syndicates or other passive activities. But for our purposes, today, we're gonna consider it real estate, right? So the way this works is when you buy a property, you're gonna have a depreciation expense. Residential Property is depreciated over 27 and a half years, commercial properties depreciate over 39 years. As we'll talk about in any other episodes, you can use a cost segregation study to accelerate the depreciation on certain components. Specifically, with 100% bonus depreciation, you could depreciate the five year property, which is tangible personal property, things like appliances, cabinets, items of that nature, the land improvements, which are 15 year property, those things are things like sidewalks, landscaping pools, things of that nature. Those can both be depreciated 100%, in the first year, you place that asset in the service. And again, you're going to use a Cost Segregation studies generally to identify those. And that's going to create in the year you acquire that asset. That's most likely when you combine that increased depreciation expense with your overall operating expenses, things like property management fees, repairs, maintenance, property taxes, utilities, that's all going to combine, you're usually going to have a loss a sizable loss. And at that point, that's going to be called the current passive loss. And that can offset any current passive income you have any net passive income, or gains from passive activities. So that's one thing to monitor, you can always go ahead and buy a property in the same year you sell another property to create current passive losses. You can also use suspended passive losses to offset capital gains, suspended passive losses are simply current losses from prior years that you weren't able to utilize. Because passive losses can only offset passive income. So what happens is they will carry forward. So if you don't use them, they will carry forward indefinitely. And you could always find these suspended passive losses on form 8582 of your tax return. And again, that's something that you're going to want to look at. In a year you sell an asset to see do I have suspended passive losses? How many spent how much what's the amount of the suspended passive losses I have? And to what extent can help me offset this gain?
Brandon Hall 14:30
Yeah, if you want a little bit more information about form 8582 I actually did a whole video on it on the tax smart real estate investors YouTube channel that we have. So check that out. We can post a link in the description of the show notes here. It's episode 49 of the tax smart daily and if you haven't been watching the tax Mark daily, you totally should because every single day I'm putting out really awesome content and people are raving about it and you're missing out if you haven't seen it, so go check that out. That's the tax mark. Really Investors YouTube channel. But it's episode 49 of the tax Mart daily. And I basically pull up a form 8582. And I walk you through it. So I show you exactly where to go to see if you have suspended passive losses that you're carrying forward, it's really important to understand one, everybody should be doing this every single person listening to this podcast, like, if you take one thing away from all of our podcast episodes, I appreciate all everybody's comments about Oh, you guys are great, like you're saving me so much money in taxes and all these cool things. We're doing all that stuff, that's great. But the one thing that I want every single listener to take away from our podcast is what I'm about to say, you need to know what your suspended passive losses are that you're carrying forward, every single year, you need to track it every single year, because sometimes your CPA messes up, sometimes your CPA makes mistakes. Sometimes when you switch CPAs, the new CPA forgets to go and look at form 8582. And carry forward your losses, we have seen $400,000 losses just vanish, vanish, that costs that person at least $120,000 in taxes. So make sure that you are looking at this on an ongoing basis every single year, you should know what your suspended passive losses are that you're carrying forward. Not only will it help you with exit strategies, because if you've got a $400,000, to spend a passive loss, you don't have to do a 1031 exchange, right? I mean, we love 1031 exchanges, but let's not do it if we don't have to do it. So just make sure that you go to form 8582, you're going to look at worksheet six, it's always attached to form 8582, Column B on allowed losses, whatever that total is, that's the unapplied losses that you're carrying forward, year to year. And you need to know what that is every single year. If you want to walk through a form 8582. Again, go to the tax smart real estate investors YouTube channel, check out the tax Mart daily episode 49. And you'll get that walk through now what Tom was saying, I just want to kind of echo because there's a lot of confusion. And we've got our big tax smart investors Facebook group, we've got almost 3000 investors in that group. And everybody asks, not everybody, but a lot of people ask all the time, it seems like at least once or twice a week pay my CPA says that my rental losses, or my syndication losses from this LP investment cannot offset the passive income that I have from these other things that I'm doing. And if you truly have passive income from your other deals, then your syndication losses, your your passive losses can offset that income. And where would you figure that out? Well, you would go to form 8582. And you will look at line four, and line four basically says add it all up, combine all of them all of your passive activities, positive negative, add them all up. If you sell a passive activity at a gain, you report that on form 4797. But what are the form 4797 instruction, say they say, Hey, if this is a passive activity, you also need to report the gain on form 8582. So really, you need to know form 8582. That's the number one form that you need to know, even this is probably even more important than your Schedule II honestly, form 8582 That's where all the netting happens. And so when your CPA or your tax advisor says yeah, I don't think that your rental losses can offset your surgical center passive income, you get to go away to second form 8582 says that it can actually form 8582 makes it extremely clear that it can, can you draft up a pro forma tax return for me, so that we can test this theory that these losses don't offset, because that surgical center income is going to flow in to form 8582. And line four on form. 8582 says net all of your passive activity, income and losses together. And we're going to report the net. So it's aggregating everything. And what does that have to do with exit strategies? Well,
if I sell a rental property at a gain, or if I sell a passive activity to gain maybe I invested in a hair salon, and I put $100,000 in and I'm getting $10,000 annually, I'm not involved in management decisions. I'm not participating, I'm just purely passive, I just put some money in to help them expand. And now I want to sell that steak, right. So the $10,000 that I've been receiving every single year, that's passive income. I've been offsetting that passive income with my rental losses. And now I want to sell that steak in the surgical center and I can sell it for 150k. So the $50,000 gain, well, it's a passive activity game, it's going to show up on form 8582. So what can I do I can also go and invest in syndication, and I can create a loss from that syndication investment because this syndication is going to do a cost segregation study, they're going to pass back a passive activity loss, and now that passive activity loss can offset the gain on sale for my hair salon investment. So really important to understand that passive activity income offsets, passive activity losses, and you can defer all day long if you know that and you're, you know, if you think about it like My Hair Salon example. It's essentially a 1031 exchange, right? Just without doing a 1031 exchange. I mean, I'm selling one at a game. But I'm also making this investment over here. So So on the left hand, I'm selling it again, on the right hand, I'm making this investment that's gonna generate a loss, or what is the loss? Do a loss reduces my basis, right? If I put $100,000 into an investment, and then I'm passed an $80,000 loss? Well, now my basis is $20,000. So if they sell at $100,000, I've got an $80,000 gain, because I took the loss, right? Since I took the loss, my basis decreases, or what does it 1031 Exchange, do a 1031 exchange says we're gonna roll forward your game. So your basis is 20, the fair market value is 100, we're just going to roll that forward into the next asset. So the next asset, guess what the fair market value is 100, the basis is 20, I sell that asset at some future point, I have an $80,000 gain. So we're essentially recreating a 1031 exchange by utilizing section 469, the passive activity code section correctly and efficiently and timing things. So whenever you're selling a passive activity, whether or not it's real estate, you can essentially accomplish a 1031 exchange without doing a 1031 exchange, as long as you on the back end, are investing in assets that are going to produce tax losses for you. And and we have some examples of this tax losses to think or of what what activities create those tax losses.
Thomas Castelli 21:25
Yeah, so is what activities create these tax losses? Well, rental real estate, first and foremost, if you're not a real estate professional, which is outside the scope of this episode for today. But if you're not a real estate, professional rental real estate is considered passive, they're considered passive by default. So that means that any losses you generate from your rental real estate will be passive. Now, there's other activities that could be passed as well, as Brandon was saying, and that's usually when you invest in other businesses that you're not materially participating in, as a limited partner. So it could be that hair salon, it could be a local pizzeria could be the local fitness franchise, that they're looking to expand to five new locations, you just put some money and you never, you never do anything, they do all the work, and you simply are the investor. So it's pretty much any business where you're investing as a limited partner. And you're not involved, you're not making any magic decisions, you have a silent partner, quote, unquote, or you're simply the money partner, just putting the money in, those are going to be passive activities, they can also have businesses that you own 100% of that you either built in the past under certain rules, okay? Or that you just bought that you just don't participate in. Those can also be considered passive activities. Like for example, you can go buy a fitness center, never touch it. And if you have operators in it, you have people, managers doing that bit running that business for you, that could potentially be a passive activity, and any losses from that five year property, all those fitness equipment that could potentially generate a lot of losses for you. Same thing with laundromat, same things with restaurants, there's a lot of different businesses that you could use this strategy on. Now, I think the biggest problem most CPAs have is actually be willing to take the stance that it's passive. And I think that's because they have a lack of understanding of section 469 and the material participation rules. I see this all the time. I see this all the time. We have clients or prospective clients that come to us and say, Well, my CPA said that, you know, this hair salon isn't a passive activity. And that's because usually they don't understand how the material participation rules work. If you're not meeting one of the material participation tests, if you're falling underneath those thresholds, then it's going to be a passive activity. And on a business, it's a little bit different than real estate. Remember, rental real estate, unless you're a real estate professional is always going to be passive by default. That says it right there in the tax code. Very, very plain and simple. Everybody knows that it's very easy and clean for CPAs. To understand. But when you get into businesses, businesses don't have that high bar of being a real estate professional. To make it passive or non passive, you simply have to look at the seven material participation tests and make a determination Do you meet one of those criteria is one of those tests. And if you do, then it's an active activity. If you don't, then it's a passive activity. But because that high bar of the real estate professional isn't there, it's a little bit more, I don't want to say Gray, it's a little bit harder to determine a little bit harder to substantiate, which is why I think a lot of CPAs will err on the side of caution on their end and say that it is active because the IRS frankly in most cases is going to come and beat down your door if you're going to pay them more taxes. So just something to keep in mind that these other activities do exist for you. You just have to find a CPA can recognize where those opportunities do exist. And you know, one of the biggest problems we have in the CPA industry is people the CPAs are too busy preparing tax returns to ever really provide any planning on how their clients can minimize their taxes which is often costing their clients a lot of money
Brandon Hall 24:51
and so I'm and I've worked with over 1000 real estate investors on tax planning over the past six years, we've saved them millions of dollars in taxes. And the reality is is that Tax Planning, especially one on one is really expensive. It's not in the budget for all real estate investors. But real estate investors are near and dear to Tom and I's heart, we're real estate investors, our parents are real estate investors, we want to help every single real estate investor out there. So we created tax smart investors.com. There's three subscription tiers, you can get a content subscription tier that gives you access to gated content, and we write it in a way that you can digest it. But there's also citations that you can go to your own tax preparer and say, Wait a second, this is how it's actually supposed to be. And here's the citation. On that content subscription, you also get access to a weekly tax strategy newsletter. On top of that, we also have a subscription that gives you access to our Insider's Facebook group, which just allows closer access to Tom and I and our team of CPAs. You can schedule paid calls with us, and you can get access to our monthly workshops. Through that subscription tier and those monthly workshops. We're doing tax planning, financial planning, we're going over accounting strategies and how to automate your systems. And then we have a top tier
Thomas Castelli 25:59
and that top tier, that's really where you get access to us and our team of experienced real estate tax planners. And you could do that through two calls, we'll take a look at your situation and determine what strategies you can use to minimize your taxes based on where you are, where you're looking to go. And in addition to that, what a lot of our clients have loved over the years is the ability to send emails where you could send in your question, and we'll get back to you with an answer within 48 hours. And you should definitely check that out. If you're sending questions to your CPA and they're taking weeks to get back to you if they ever get back to you. Or they're not providing with any planning, we can take a look at your situation and determine what can be done to help you save on taxes.
Brandon Hall 26:37
And to two other ones that can't remember if you actually mentioned them or not. So if you did mention them, I apologize, we're just going to mention them again, with two additional ones that our clients are often talking about investing in or are investing in our ATM machines, syndicates and self storage syndicates, to ATM machines and self storage like those those have been popping up for various reasons and gaining a lot of popularity. The ATM machine is actually really interesting. You know, ATM machines can be if you purchase an ATM for like $1,000, you can 100% Bonus depreciate the full $8,000 machine. So in the first year, it gives you a pretty sizable loss. So investing in ATM machines, syndicates can give you a pretty sizable loss as well. But we've seen some sponsors of ATM machines, syndicates and self storage syndicates also not understand the passive activity rules, which Tom was just kind of talking about, you know, they these sponsors will tell their investors Yeah, you'll be able to use the losses, the losses are business losses. And it's like, well, it doesn't matter if the losses are business losses or not. What matters is what bucket of income are these? Are these losses in are these in the passive bucket, or are they in the non passive bucket. And that is determined on an individual level, it's not going to be determined at the partnership level. So the sponsor themselves, they may have non passive business losses coming from this syndicate because they are the ones that are driving the deal. They're the one involved in the day to day. But if you put 100,000 into these, and you don't do anything, then you're passive, you're not materially participating. So any loss kicked back to you, regardless of whether it's a business loss, or rental loss or anything else. It's a passive loss. And that passive loss is subject to Section 469. So we've seen people make the mistake of saying, Oh, well, these are business losses. So you don't have to worry about that. And that's not true, you do have to worry about that you have to worry about your material participation, or you have to plan around how are you going to fully utilize those passive losses are being kicked back to you. But ATM machine investments, self storage investments, those are both great investments to generate passive losses. Should you let the tax tail wag the dog No. So you know, this is not investment advice. This is tax advice. We're telling you how this works. Make sure that you do your own due diligence on these deals before you go in and invest in them and make sure that you're actually going to make money. You know, you don't want to actually lose money, you just want to generate tax losses to help you increase your wealth or increase that return on investment you're able to claim.
Thomas Castelli 28:58
Yeah, and I just, you know, something I think just to make very clear is that in 95% of the cases, if you're investing as a limited partner, as a silent partner, and meaning you're putting money up and you're not doing much, but making the decision to put the money up and sit back and collect your checks, it's going to be a passive activity 95% of the time, right. So that's just something to keep in mind. If a sponsor is telling you that you're going to be able to use these losses as non passive losses, chances are, they're probably not trying to be malicious. They're not probably not trying to intentionally deceive you. They just don't understand the tax consequences. Or maybe they're projecting how it's going to affect them onto you. As Brandon was saying, if they're the general partner, perhaps they're non passive for them. So it's just something to keep in mind if you invest passively, that most likely the activities you're doing in our passive except, except the one exception that I could say offhand, is oil and gas investments, working interest, there's a special carve out that makes those non passive even if you are passive. So that is the one circumstance that I'm aware of where you could be investing passively, truly passively and still have non passive losses. But that's neither here nor there. For the purpose of this episode. What we're trying to convey is that when you have capital gains from the sale of any passive activity, and rental activities, unless you're a real estate professional, always passive, you can use losses from other passive activities, including rental real estate to offset your gains. And that is a strategy that dozens and dozens of our clients have used over the basically since the tax cuts and Jobs Act IV came out in a substitute to a 1031 exchange, right, and we'll go through a 1031 exchange in another episode, but if you can use passive losses, and avoid a 1031 exchange, and you may be better off saving yourself the hassles and headaches of going through a 1031 exchange. And I think that's one of the major takeaways here.
Brandon Hall 30:54
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