Secret Tax Breaks In Community Associations

Written by Posted On Thursday, 03 October 2013 11:55

If you are selling your home in a community association, have you taken advantage of every possible tax break? Did you include your percentage interest in the many improvements which your association has made over the years?

Let's compare these two situation. You purchased your single family house many years ago for $100,000. Over the years, you have spent $50,000 in improvements and have the bills to document this. This increases your basis for tax purposes to $150,000. You sell the property for $650,000. Your profit (excluding for this discussion sales commissions and settlement costs) is $500,000. Currently, under Federal law, if you are married, file a joint income tax return, and have owned and lived in the house for two out of the five years before sale, you can exclude up to $500,000 of your gain; accordingly, in our example, you will not have to pay any capital gains tax. If you are single - or file a separate tax return - you can exclude up to $250,000 of your profit. The difference - $250,000 - will be taxed. Keep in mind that as of this year, the capital gains tax rate has been increased, and many homeowners will have to pay up to twenty percent of a portion of their gain.

Now let us change this example to the sale of a condominium, cooperative or a house in a homeowner association. Same facts: you bought for $100,000 and sold for $650,000. Since the IRS will consider your profit at $550,000, even if you are eligible for the up-to-$500,000 exclusion of gain, you will have to pay capital gains tax on the $50,000 overage.

However, there are "secret" benefits you probably overlooked - or were not even aware of: the improvements made by your association including the qualifying energy efficiency improvements added to the complex.

According to the Internal Revenue Service "You need to know your basis in your home to determine any gain or loss when you sell it. Your basis in your home is determined by how you got the home.. (IRS Publication 523, entitled "Selling Your Home").

For example, if you bought or built the property, your basis is what it cost you. If it was a gift, your basis is the basis of the person giving you the property. And if you inherited the house, your basis will most likely be the fair market value as of the date of death, called the stepped-up basis.

Let us define some important terms:

  • Gain.Also known as "profit," and the gain on the sale of your home is the amount realized minus the adjusted basis of the home you sold.
  • Amount Realized.This is the selling price of your old home minus your selling expenses. These would include real estate commissions, advertising fees and legal fees incurred exclusively in the selling process.
  • Adjusted Basis.This is your basis in the property increased or decreased by such expenses as settlement fees or the costs of additions and improvements that have been made to your property.

Thus, as can be seen, in order to reduce your gain, (and pay less tax), you want to legitimately increase both your basis and your selling expenses.

Let 's go back to our example. We have agreed that you have made a profit of $550,000 and will have to pay capital gains tax on that additional $50,000.

Your community association has spent a considerable amount of money improving the property. They have added a new roof (or roofs), installed a swimming pool and tot lot, and made other similar improvements.

You own a percentage interest in that association. Generally, (other than for cooperatives) your percentage interest will be found at the end of a legal document known as the "Declaration." The total of everyone's percentage interest in the association should be 100%. In a cooperative, your percentage interest should be reflected on your share certificate or proprietary lease.

Let us assume that the association spent $400,000 in improvements from the time you bought the property, and that your percentage interest is 2.3. If you multiple your percentage interest times the total improvements, you get a figure of $9,200.00, and this amount can -- and should -- be added to your basis as "improvements."

It is surprising to me that many community association owners are not aware of this tax benefit. In most community associations, the records should be available as to the total expenditure for improvements on a year to year basis. Please understand that maintenance and repair items are not added to basis, but capital improvements -- generally items which have a useful life of one year or more -- are indeed legitimate items to be added to basis.

Basis is a concept on which most of us pay little attention. However, as we get older, and become concerned with conserving the majority of our assets, the concept of adjusted basis becomes critical. Each dollar that can legitimately be added to the purchase price (the adjusted basis) generates a savings to the individual community association owner.

What should you do if you sold your property within the last few years and were not aware of this special tax break? Obtain a breakdown of capital improvements for the last three years from your association's property manager. You may be able to file an amended return, but you must discuss the logistics, the practicality and the legality of an amended return with your own tax advisers. You don't necessarily want to red-flag the IRS by filing that additional return.

Also See: Selling Your Home May Be Tax Free

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

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