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Safe Harbor Created for Rental Real Estate Activities and Section 199A Deduction, but Triple Net Leases are Excluded

February 8, 2019 199A Business & Tax Blog

Section 199A generally provides a 20 percent deduction for qualified business income of a trade or business. Many comments made with respect to the proposed Section 199A regulations focused on when rental real estate activities will constitute a trade or business, and thus be eligible for the Section 199A deduction. The final regulations generally define a trade or business by referencing Section 162, and the IRS acknowledged there is uncertainty regarding when rental real estate activities constitute a trade or business for purposes of Section 162. In connection with issuing the final Section 199A regulations on January 18, 2019, IRS issued notice 2019-07, which provides notice of a proposed revenue procedure detailing a proposed safe harbor under which rental real estate activities may be treated as a trade or business solely for purposes of Section 199A.

The notice provides that a “rental real estate enterprise” will qualify for the safe harbor if:

  1. Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise;
  2. For taxable years beginning prior to January 1, 2023, 250 or more hours of rental services are performed per year with respect to the rental enterprise. For taxable years beginning after December 31, 2022, in any three of the five consecutive taxable years that end with the taxable year (or in each year for an enterprise held for less than five years), 250 or more hours of rental services are performed per year with respect to the real estate rental enterprise; and
  3. The taxpayer maintains contemporaneous records, including time reports, logs, or similar documents, regarding (i) the hours of all services performed, (ii) a description of all services performed, (iii) dates on which such services are performed, and (iv) who performed the services. This contemporaneous records requirement will not apply to taxable years beginning prior to January 1, 2019.

The notice defines a rental real estate enterprise as an interest in real property (or multiple properties) held for the production of rents. The interest must be held directly or through an entity disregarded for income tax purposes. Commercial and residential real estate may not be part of the same enterprise. Real estate used by the taxpayer (including an owner or beneficiary of an owner of a pass-through entity that owns the real estate) as a residence for any part of the year under Section 280A is not eligible for the safe harbor.

Importantly, real estate leased under a triple net lease is also not eligible for the safe harbor. The notice provides that a triple net lease includes a lease arrangement that requires the tenant to pay taxes, fees, and insurance, and to be responsible for maintenance activities in addition to rent and utilities.

Rental services may be performed by the owner, employees, agents, and/or independent contractors of the owner. Rental services include (a) advertising to rent the real estate; (b) negotiating and executing leases; (c) verifying information contained in prospective tenant applications; (d) daily operation, maintenance, and repair of the property; (e) management of the real estate; (f) purchase of material; and (g) supervision of employees and independent contractors. Rental services do not include financial or investment management activities, such as arranging financing; procuring property; studying and reviewing financial statements or operation reports; planning, managing, or constructing long-term capital improvements; or hours spent traveling to and from the real estate.

In order to apply the safe harbor, the taxpayer claiming the Section 199A deduction must attach a signed statement (described in the notice) to its income tax return.

If a rental real estate activity fails to satisfy the safe harbor, it may still be treated as a trade or business for purposes of Section 199A if the activity otherwise qualifies as a trade or business under Section 162.

This post is one in a series of posts on the 199A regulations. 

Michael J. Wilson