Saturday, February 15, 2014

When Can You Take That Deduction?

Sometimes the most mundane things can cause a tax issue. For example, an asset must be “placed in service” before one can claim depreciation. Consider that 2013 was the last year one could claim 50% bonus depreciation, and you can see how someone would want that big-dollar asset in service by year-end.

But what does “place in service” mean?

Let us go through a couple of examples.

Let’s say that you purchase a single-family home. You know someone who wants to rent. With that in mind you purchase the property, incur approximately $10 thousand in repairs and then verify the credit worthiness of the potential renter. You are surprised and disappointed with the result, and decide not to rent to that individual.

It is now the following year. The next applicant is eligible for Section 8 assistance. HUD sends an inspector, who unfortunately wants additional repairs before approving the application. You do the repairs. HUD approves. You have a renter.

The issue here is that expenses must be associated with a trade or business (or an income-producing activity) that is up and running in order to be deductible. Prior to then, the expenses are likely “start up” expenses, which are not immediately deductible. The classic example is a restaurant “dry run,” which occur before the restaurant opens to the public. Family and friends are invited to put the kitchen and service through its paces.

Most accountants would take the position that the house was placed in service (that is, its “activity” as a rental had started) when it was available to be rented. You had a renter lined up. Granted the renter did not pass the credit test, but there was a house, you were willing to rent the house and someone wanted to rent the house. Unfortunately, you did not otherwise try to “market” the house, perhaps by listing it on Craig’s List or advertising in the newspaper.

Oh, by the way, you did not start depreciation until the HUD renter moved in, which is year two in our example.

     Question: Can you deduct the $10 thousand in repairs?

Let’s go on to example #2.

There is a life insurance salesman who specializes in the uber-wealthy. He generally sells life policies of $10 million or more. He has developed quite the network of CPAS and other insurance agents. When prospective clients appear he will charter planes rather than rely on commercial flights. He had a bad experience when a commercial flight ran late, causing him to miss an important meeting and costing him a possible $8 million commission.

He decides to purchase his own plane. He needs to fly nonstop from cost-to-coast, as many of his clients are on the west coast. He eventually finds a $22 million Bombardier Challenger 604 that fits the bill. Unfortunately it is closing in on December 31, and he needs that bonus depreciation deduction. Problem is he also wants to customize the plane. He wants a conference table, for example. He wants to be able to work while he is flying coast-to-coast.

What to do? He tells the company that he absolutely positively needs the plane before year-end. On December 30, he gets the plane. He makes a trip to Seattle for a business lunch, then to Chicago to meet with another insurance agent. He gets in that business use.

He then returns the plane so the modifications can be made. He wants that conference table. He also wants 20-inch display screens rather than the standard 17-inch screens. Who wouldn’t?

     Question: When would you start depreciating the plane?

How would I have handled these two cases? In the first example I am inclined to start depreciation on the house in year one, the same year that the potential renter flubbed his credit check. The house was ready for rent, evidenced by have a potential renter wanting to rent.

And I would have been wrong. The Court decided that the house was not ready for rent in year one. It needed repairs, for example. The Court also observed that the potential renter was lined-up before the purchase of the house. After the credit check, the landlord did not resort to referrals and other means to rent the house. Instead she applied for Section 8 approval. Since HUD would not approve the house until repairs were made, the house could not be placed-in-service before then.

I understand the Court’s position, and I disagree with the Court. Unless the landlord bought the house specifically for Section 8, then HUD’s approval or disapproval sways me very little. Having a potential renter sways me a lot. Were the repairs substantial enough to prevent a renter from moving in? We do not know.

The Court also observed that the landlord did not try “other” means to rent the house, such as newspapers or Craig’s List. That bothers me. Just about every small landlord I know rents exclusively by word of mouth and referral. The idea of “advertising” their duplex or fourplex would be unimaginable, especially given today’s litigious environment. I have run into this position before on audit, so it does represent the IRS party line.  Can you rebut the position? You can, but it may require documentation of one’s efforts to rent the property. In my case, the IRS wanted my client’s referral sources to document her efforts to obtain a tenant.

And I suspect that the taxpayer’s decision to delay depreciation until year two may have been fatal.

What about the plane? It seems to me that the purpose of a plane is to fly, and that plane flew by December 31. Unless the flights were not really business-related and constituted only smoke and mirrors, I would say that plane was placed in service by December 31.

And I would have been wrong. The Court decided that the plane was not placed-in-service until the modifications were made, and the modifications were not made until the following year.

The Court is not without basis. IF those modifications were really THAT IMPORTANT to the insurance salesman, then one could reason that the plane was not ready for use in his trade or business as an insurance salesman. It was not enough to fly. It was necessary that he fly with a conference table. I get the nuance.

I do not think that was it, though. The Court went on to talk about how the salesman had understated his income by tens of millions of dollars and how he used nominees to conceal ownership and control of entities from the IRS. He had created false paperwork to support illegitimate deductions. Me thinks that he had hacked off the Court, and the Court – seeing an opportunity to disallow millions of dollars of depreciation – took the opportunity.

I tell you what I would have recommended to the salesman: do not give the plane back immediately. Wait three or four months. Use the plane extensively. Then install the conference table. Tax accountants refer to this as “cool down.”

Yes, sometimes tax planning is that simple.

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