Winston Churchill once said, “There is no such thing as a good tax.” Of course, he also said, “I like pigs. Dogs look up to us. Cats look down on us. Pigs treat us as equals” so Winston was a pretty sharp guy. For purposes of this article, however I will focus more on taxes and less on pigs although there are probably more similarities than differences between the two. Pork is more than just the other white meat.
I don’t mind paying my fair share of taxes but I want my taxes to go to things like fixing infrastructure, educating poor kids or feeding the hungry. However, it seems that much of our tax dollars go to pork projects to help members of Congress get reelected so that’s why I have become more focused over the years in my practice in helping my clients defer taxes when selling real estate and other highly appreciated assets.
Most of us are familiar with what is called a 1031 exchange. A 1031 exchange is a great opportunity to defer capital gains taxes,state taxes and depreciation recapture when selling an investment property and by following IRC 1031, the seller can purchase another investment property of equal or greater value and defer the previous mentioned taxes to some point in the future. It’s a great opportunity for the seller and it’s a great opportunity for the real estate broker to buy additional property for their clients. It’s a win-win.
But what if the property being sold is a primary residence or a property that does not qualify for a 1031 exchange. We all know that a primary residence might be the largest investment that many will make and hopefully the primary residence will appreciate in value over the years. Even though there are various exemptions and exclusions for capital gains when selling a primary residence,it’s quite possible that there could be a sizable capital gains and state tax liability once the residence is sold. For example, I worked with someone recently who bought a home wisely and now, a couple of decades later, is selling the property and after crunching the numbers is facing a $4 million capital gain.
The property is in Texas so the seller is looking at a capital gains tax of $800,000 (4 million x 20%), no state income tax in Texas but add that in for the 43 states that have a state tax and also the CPA said that there might also be the alternative minimum tax as well but he wouldn’t be sure until crunching all of the numbers. If so, that’s additional income tax due. So if the property sold was in California, you can add about another $400,000 in state taxes. If the property was in Colorado, you could add an additional $200,000 in state taxes and so on.
But take the taxes due to the next level. Let’s say that this individual paid $1 million in taxes, he is 60 years of age and will live for another 20 years. If he could defer that $1 million in taxes and invest that amount wisely, that could be $3 million or more that could be passed on to his heirs at his passing. Remember that this is only the taxes deferred and not the rest of the sales proceeds. So the question is this… Can a property owner defer taxes when selling a high end residence or luxury property that does not qualify for IRC 1031. The answer is YES. It is absolutely possible. Having said that, there are a number of moving parts to accomplish this tax deferral strategy and the seller’s CPA and /or attorney would have to be involved but yes, it’s possible.
Imagine if you will the day you started selling real estate and you decided to work as hard as you could and put as much money away into your retirement plan as is possible. You would make whatever sacrifices needed in order to make as large a contribution to your retirement plan as allowed and when you had $3 million in your account, you were going to retire and do all the things that you choose not to do until you retired and had enough money to enjoy life.
So you worked more hours than anyone in the office. You talked to potential clients that no one would talk to. You kept your car a couple of extra years before buying another one and you took shorter vacations rather than longer more expensive ones so you could make larger contributions into your retirement plan. Sound familiar? And this went on for 3 decades until one day, it happened!
You opened your monthly statement and you couldn’t believe your eyes. There it was… $3 million in your account. You made it. You could now retire and do all the things you put off until now. You could not contain your excitement as you dialed your CPA with the great news. Your CPA was thrilled at your good fortune and mentioned to you that he had a tax form you needed to sign and then you could begin your well deserved retirement. So he says to you…I need you to sign and date the form and then write a check made payable to the US Treasury for $900,000.00 and as soon as the check clears, you retirement can begin.
You feel like you were just hit by a truck. You try to speak but nothing is coming out of your mouth. Your CPA explains that a couple of years ago, Congress passed a tax law that said that before a taxpayer can retire, they must pay a 30% tax on the lump sum amount in their retirement plan. So you realize that you actually have $2.1 million in your account and probably need another 10 years of working to net the $3 million you want to retire. You’re devastated.
Well, there’s good news and there’s bad news. The good news is that there isn’t a 30% tax on retirement plans for now. I made that up. The bad news is that your sellers could be facing as much as that 30% tax on the capital gains they have earned when you sell their property. You don’t want to pay that tax so why would you let your clients pay that tax now that you know it might be able to be deferred indefinitely.
But imagine the powerful tool you now have in your briefcase. You’re talking to a prospect who is selling a high end property in LA, Aspen, Miami, New York, Chicago or any other location in the country and you want to list that great high end residence. The problem is that as good as you are, there are 3 other talented brokers that are also competing for the listing. Those 3 make outstanding listing presentations and the prospect is absolutely impressed with all of them.
Now it’s your turn to hit the ball out of the park and you make Babe Ruth proud. As you’re finishing, you ask the prospect one final question. “Have you considered the potential capital gains tax liability you will have when you sell.” The prospect responds that his CPA informed him that there will be a rather large tax bill to pay and he just has to take a deep breath and pay it. You then smile and ask him if he knew that he might be able to defer those taxes. He looks at you a bit stunned and asks you to explain and you do. Even if he decides to pay the tax, you have set yourself apart from the others and I can tell you that we have a number of success stories where the agent took the time to show concern for the prospect after the commission check would be paid and got the listing.
Again, this tax deferral strategy may not be for everyone but if it helps you make 1 sale a year, that’s a great opportunity for all involved. As I mentioned earlier, there are a number of moving parts to this strategy but a short phone conversation probably could give us insight to the viability of this strategy in a specific set of circumstances..
Now go sell a great property, defer the capital gains and state taxes and invite me to dinner. But please don’t serve pork. Churchill probably wouldn’t approve. Best wishes until the next time we visit.
By David Fisher