If a passive activity interest is transferred because the owner dies, unused passive activity losses are allowed (to a certain extent) as a deduction against the decedent's income in the year of death. The decedent's losses are allowed only to the extent they exceed the amount by which the transferee's basis in the passive activity has been increased under the rules for determining the basis of property acquired from a decedent. For example, if the basis of an interest in a passive activity in the hands of a transferee is increased by $6,000 and unused passive activity losses of $8,000 were allocable to the interest at the date of death, then the decedent's deduction for the tax year would be limited to $2,000 ($8,000 − $6,000).
Finance was concerned that notwithstanding protective provisions in the law to safe guard against this tax deferral, professionals and other groups were using corporations exclusively for the purposes of gaining this benefit. This platform of concern for politically correct fairness and equity however did not address the fact that the after-tax profits of a corporation distributed to the individual are subject to a second layer of tax when the individual is paid a dividend from the company. As such, when Ms. Shareholder ultimately receives a dividend from the CCPC of its retained earnings, she will have paid a combined corporate and personal tax of approximately 56%, which is about 3 points higher than the top marginal rate applicable to individuals. The objective of the second layer of tax is to achieve what historically was called the principle of integration.
What is passive income? It is income that is not generated from your day job. Any net gain at the end of the year is taxed at ordinary income tax rates. The additional downside: if the rental property generates a loss, you are not able to offset passive losses with ordinary income i.e., wages. The passive losses can only be used to offset passive income.
Rental properties are defined as passive income with a couple of exceptions. If you’re a real estate professional, any rental income you’re making counts as active income. If you’re "self-renting," meaning that you own a space and are renting it out to a corporation or partnership where you conduct business, that does not constitute passive income unless that lease had been signed before 1988, in which case you’ve been grandfathered into having that income being defined as passive. According to the IRS, "it does not matter whether or not the use is under a lease, a service contract, or some other arrangement."
Investors turn to real estate as a way to build long-term wealth, earn additional income, and generate a tax shelter. Using real estate as a tax shelter that extends to other income can be a complicated process. Knowing how you can use any losses generated by your rental real estate starts with understanding how the IRS defines and treats passive and active income.
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