My partner
brought me a new client’s personal income tax return. He wanted me to “come up
with tax ideas,” as though I am an Iron Chef deciding what to do with the show’s
“secret” ingredient.
Something
caught my eye. Let’s talk about it.
Let me set
this up for you:
(1) Taxpayer is married.
(2) The wife is self-employed. More
specifically, she is a proprietor and reports her business income on a Schedule
C.
(3) The business owns a house used as
offices. The business depreciates the house.
(4) As is true for Schedules C, all her
profits are subject to self-employment taxes.
There you
go. You have all the facts you need.
Got it yet?
It has to do
with the house.
There is a
tax case from the 1990s addressing self-rental between a business and its
owner. Taxpayer (Cox) was an attorney who reported his practice as a sole proprietorship. His offices were in a commercial building
owned jointly by Cox and his wife. He paid himself rent of $18,000, which he deducted
from the law practice and reported as rental income elsewhere on his return.
NOTE: Cox addressed the “passive activities” rules. He apparently
had passive losses that he could release by generating passive income. If so, his net rental income might zero-out,
and he would still get an income tax deduction for paying himself rent. It
would be a win-win – if only the self-rental rule did not prohibit it.
The IRS of
course disallowed the $18,000 rent entirely.
Cox went to
trial on a very interesting position. He and his wife owned the rental property
as tenants by the entireties. He argued that the form of ownership made a tax difference.
The Tax
Court was intrigued. It looked to Missouri property law, and it noticed two
things. First, each spouse is entitled to the use and enjoyment of the entire property.
Second, a spouse cannot unilaterally divest his spouse of his/her interest in
the property.
In a tax
venue, this meant that Mrs. Cox was entitled to half the rent, and that Mr. Cox
could not divest her of that right.
And the
Court allowed Mr. Cox a $9,000 deduction for rent on his Schedule C. It
disallowed the other $9,000 (that is, his half) under the self-rental rule.
How does
this apply to the new client?
Taxpayer and
her husband own the house. She owns the business. I see a strategy… for her
self-employment tax.
Did I trip
you up?
Remember:
all her Schedule C income is subject to self-employment tax, which currently is
15.3 percent. One way to reduce it is to take a tax deduction on her Schedule C
and report the corresponding “income” somewhere else on her tax return - somewhere
that is NOT subject to self-employment tax. Somewhere like a real estate
rental.
The tax pros
refer to this a “Cox” strategy. The strategy we are talking about may also cause
additional taxes under the new Obamacare “net investment income” tax. A tax
advisor would have to review the situation and run numbers.
Still, it is
something, and it is all your money until they take it from you. If this
applies to your business situation, please bring it to your tax advisor’s
attention.
