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  • 1.  Partial Interest of residence sold

    Bronze Most Valuable Member
    Posted 10-01-2018 10:43 AM

    Has anyone ever had a client make a partial sale of their residence and take the exclusion on gain of sale?  I have an elderly couple who are considering making a partial sale of their residence to one of their children.  The gains on the house are well i excess of $500.000.  I am trying to determine if we can take an exclusion on the partial interest when it is sold to the son.  Any thoughts?  I would get an appraisal to prove that it is truly at FMV. They have lived in the house for over 30 years.

    Thanks!



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    Paul Sadej
    CPA
    PAUL J. SADEJ JR., CPA PC
    Bellmore NY
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  • 2.  RE: Partial Interest of residence sold

    Silver Most Valuable Member
    Posted 10-02-2018 10:45 AM

    Here are the old regs – a good place to start.  I have not researched their availability but I think they are still relevant.  The example is very similar to your transaction.

     

    Reg § 1.121-4. Special rules.

    Caution: The Treasury has not yet amended Reg § 1.121-4 to reflect changes made by P.L. 113-295

    check Effective: December 24, 2002. For dates of applicability, see §§1.121-1(f)1.121-2(c) , 1.121-3(l)1.121-4(l), and 1.1398-3(d) .

    WG&L Treatises(a) Property of deceased spouse.

    (e) Sales or exchanges of partial interests.

    WG&L Treatises(1) Partial interests other than remainder interests.

    FTCWG&L Treatises(i) In general. Except as provided in paragraph (e)(2) of this section (relating to sales or exchanges of remainder interests), a taxpayer may apply the section 121 exclusion to gain from the sale or exchange of an interest in the taxpayer's principal residence that is less than the taxpayer's entire interest if the interest sold or exchanged includes an interest in the dwelling unit. For rules relating to the sale or exchange of vacant land, see §1.121-1(b)(3).

    (ii) Limitations.

    FTCWG&L Treatises(A) Maximum limitation amount. For purposes of section 121(b)(1) and (2) (relating to the maximum limitation amount of the section 121 exclusion), sales or exchanges of partial interests in the same principal residence are treated as one sale or exchange. Therefore, only one maximum limitation amount of $250,000 ($500,000 for certain joint returns) applies to the combined sales or exchanges of the partial interests. In applying the maximum limitation amount to sales or exchanges that occur in different taxable years, a taxpayer may exclude gain from the first sale or exchange of a partial interest up to the taxpayer's full maximum limitation amount and may exclude gain from the sale or exchange of any other partial interest in the same principal residence to the extent of any remaining maximum limitation amount, and each spouse is treated as excluding one-half of the gain from a sale or exchange to which section 121(b)(2)(A) and §1.121-2(a)(3)(i)(relating to the limitation for certain joint returns) apply.

    FTCWG&L Treatises(B) Sale or exchange of more than one principal residence in 2-year period. For purposes of applying section 121(b)(3) (restricting the application of section 121 to only 1 sale or exchange every 2 years), each sale or exchange of a partial interest is disregarded with respect to other sales or exchanges of partial interests in the same principal residence, but is taken into account as of the date of the sale or exchange in applying section 121(b)(3) to that sale or exchange and the sale or exchange of any other principal residence.

    WG&L Treatises(2) Sales or exchanges of remainder interests.

    FTC(i) In general. A taxpayer may elect to apply the section 121 exclusion to gain from the sale or exchange of a remainder interest in the taxpayer's principal residence.

    (ii) Limitations.

    FTC(A) Sale or exchange of any other interest. If a taxpayer elects to exclude gain from the sale or exchange of a remainder interest in the taxpayer's principal residence, the section 121 exclusion will not apply to a sale or exchange of any other interest in the residence that is sold or exchanged separately.

    FTC(B) Sales or exchanges to related parties. This paragraph (e)(2) will not apply to a sale or exchange to any person that bears a relationship to the taxpayer that is described in section 267(b) or 707(b).

    FTCWG&L Treatises(iii) Election. The taxpayer makes the election under this paragraph (e)(2) by filing a return for the taxable year of the sale or exchange that does not include the gain from the sale or exchange of the remainder interest in the taxpayer's gross income. A taxpayer may make or revoke the election at any time before the expiration of a 3-year period beginning on the last date prescribed by law (determined without regard to extensions) for the filing of the return for the taxable year in which the sale or exchange occurred.

    WG&L Treatises(3) Example. The provisions of this paragraph (e) are illustrated by the following example:

    Example. FTC In 1991 Taxpayer A buys a house that A uses as his principal residence. In 2004 A's friend B moves into A's house and A sells B a 50% interest in the house realizing a gain of $136,000. A may exclude the $136,000 of gain. In 2005 A sells his remaining 50% interest in the home to B realizing a gain of $138,000. A may exclude $114,000 ($250,000 - $136,000 gain previously excluded) of the $138,000 gain from the sale of the remaining interest.

    FTCWG&L Treatises(f) No exclusion for expatriates. The section 121 exclusion will not apply to any sale or exchange by an individual if the provisions of section 877(a) (relating to the treatment of expatriates) applies to the individual.

     

     

     






  • 3.  RE: Partial Interest of residence sold

    Silver Most Valuable Member
    Posted 11-13-2018 07:23 PM

    Here are the old regs. I have not researched their applicability but it is on point and a good place to start. Sorry I did not realize it was not sent.

     

    Reg § 1.121-4. Special rules.

    Caution: The Treasury has not yet amended Reg § 1.121-4 to reflect changes made by P.L. 113-295

    check Effective: December 24, 2002. For dates of applicability, see §§1.121-1(f)1.121-2(c) , 1.121-3(l)1.121-4(l), and 1.1398-3(d) .

    WG&L Treatises(a) Property of deceased spouse.

    (e) Sales or exchanges of partial interests.

    WG&L Treatises(1) Partial interests other than remainder interests.

    FTCWG&L Treatises(i) In general. Except as provided in paragraph (e)(2) of this section (relating to sales or exchanges of remainder interests), a taxpayer may apply the section 121 exclusion to gain from the sale or exchange of an interest in the taxpayer's principal residence that is less than the taxpayer's entire interest if the interest sold or exchanged includes an interest in the dwelling unit. For rules relating to the sale or exchange of vacant land, see §1.121-1(b)(3).

    (ii) Limitations.

    FTCWG&L Treatises(A) Maximum limitation amount. For purposes of section 121(b)(1) and (2) (relating to the maximum limitation amount of the section 121 exclusion), sales or exchanges of partial interests in the same principal residence are treated as one sale or exchange. Therefore, only one maximum limitation amount of $250,000 ($500,000 for certain joint returns) applies to the combined sales or exchanges of the partial interests. In applying the maximum limitation amount to sales or exchanges that occur in different taxable years, a taxpayer may exclude gain from the first sale or exchange of a partial interest up to the taxpayer's full maximum limitation amount and may exclude gain from the sale or exchange of any other partial interest in the same principal residence to the extent of any remaining maximum limitation amount, and each spouse is treated as excluding one-half of the gain from a sale or exchange to which section 121(b)(2)(A) and §1.121-2(a)(3)(i)(relating to the limitation for certain joint returns) apply.

    FTCWG&L Treatises(B) Sale or exchange of more than one principal residence in 2-year period. For purposes of applying section 121(b)(3) (restricting the application of section 121 to only 1 sale or exchange every 2 years), each sale or exchange of a partial interest is disregarded with respect to other sales or exchanges of partial interests in the same principal residence, but is taken into account as of the date of the sale or exchange in applying section 121(b)(3) to that sale or exchange and the sale or exchange of any other principal residence.

    WG&L Treatises(2) Sales or exchanges of remainder interests.

    FTC(i) In general. A taxpayer may elect to apply the section 121 exclusion to gain from the sale or exchange of a remainder interest in the taxpayer's principal residence.

    (ii) Limitations.

    FTC(A) Sale or exchange of any other interest. If a taxpayer elects to exclude gain from the sale or exchange of a remainder interest in the taxpayer's principal residence, the section 121 exclusion will not apply to a sale or exchange of any other interest in the residence that is sold or exchanged separately.

    FTC(B) Sales or exchanges to related parties. This paragraph (e)(2) will not apply to a sale or exchange to any person that bears a relationship to the taxpayer that is described in section 267(b) or 707(b).

    FTCWG&L Treatises(iii) Election. The taxpayer makes the election under this paragraph (e)(2) by filing a return for the taxable year of the sale or exchange that does not include the gain from the sale or exchange of the remainder interest in the taxpayer's gross income. A taxpayer may make or revoke the election at any time before the expiration of a 3-year period beginning on the last date prescribed by law (determined without regard to extensions) for the filing of the return for the taxable year in which the sale or exchange occurred.

    WG&L Treatises(3) Example. The provisions of this paragraph (e) are illustrated by the following example:

    Example. FTC In 1991 Taxpayer A buys a house that A uses as his principal residence. In 2004 A's friend B moves into A's house and A sells B a 50% interest in the house realizing a gain of $136,000. A may exclude the $136,000 of gain. In 2005 A sells his remaining 50% interest in the home to B realizing a gain of $138,000. A may exclude $114,000 ($250,000 - $136,000 gain previously excluded) of the $138,000 gain from the sale of the remaining interest.

    FTCWG&L Treatises(f) No exclusion for expatriates. The section 121 exclusion will not apply to any sale or exchange by an individual if the provisions of section 877(a) (relating to the treatment of expatriates) applies to the individual.

     

     

     






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The opinions expressed are the views of the author alone and should not be attributed to any other individual or entity and shall not constitute an accounting opinion.