Non-resident real estate in NJ - Do I need to file if I lose money?

I live not in NJ but I have a rental property in NJ which sometimes (barely) makes money and just as often (barely) loses money.
I have no other income from NJ and I live in California.
I realize I must file a Non Resident NJ income tax form when the rental makes money; but what is the recommendation when the NJ rental loses money?
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I think you should file in order to demonstrate the loss, which is carried forward to next year.
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On 10/5/11 11:19 AM, snipped-for-privacy@yahoo.com wrote:

I'm not a NJ expert but NJ has a "Gross Income Tax" that is decoupled from the Federal return. There would not be any carry forward of a net rental loss. If your rental expense exceeds your gross rental income, your net rental income is zero. See the instructions for the NJ Schedule C. As such, I would conclude that there would not be a filing requirement with zero income. However, I would recommend that one file just to avoid getting a letter from the tax authorities as their records show previous income and no record that the property was sold.
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Are you saying that if you have disallowed rental losses then when you dispose of your rental property, you cannot take these past rental losses on the NJ return (although you do so on the federal return)?
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On 10/5/11 6:39 PM, snipped-for-privacy@yahoo.com wrote:

My post had nothing to do with disposition of an asset. My post dealt with how you don't get to report a loss and you don't get to carry forward the unreported loss. I did not look at the NJ instructions for computing gain or loss on the disposition of rental property. However, as there are no carry forwards and no allowed rental losses, I don't see how you can ever get to use them. On the federal return the losses carried forward from prior years are used to calculate your net rental income/loss for the year of disposition. On the NJ return, you can only have net rental income or zero income on Schedule C.
I did look at how NJ wants you to calculate the net gain/loss on disposition. It says you are to use the cost basis or adjusted cost basis from your federal return. As those carried forward losses don't have any effect on cost basis, you wouldn't get to use them here either.
But hey... I'm not a NJ tax expert.
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On Wed, 5 Oct 2011 23:21:29 EDT, Alan wrote:

I file the 3-page nonresidential return (1040NR) for New Jersey, so I don't 'see' a schedule 'C' (it may be there ... but I don't have it on my last year's tax return).
However, I do see that on the first page of that NJ 1040NR tax return (verbatim) on line 19: -> "Net gains or income from rent, royalties, patents (From Line 61)=0"
Notice that I definitely had accrued carryover losses; but the NJ 1040NR only seems to be concerned with gains (otherwise that would have been a negative number).
Line 61 on page 3 of that 3-page NJ 1040NR which is listed (verbatim) as: "Net income (Combine Columns b,c,d, & e)(Enter here & on Line 19)(if Loss enter ZERO)" NOTE: Emphasis on the ZERO is exactly as shown on the NJ 1040NR.
The columns b, c, and d, are listed as "Net Rental Income (Loss)"; these, of course, in my case, have negative numbers.
It's weird that NJ does not allow current year rental losses, let alone prior year carryovers!
So now, like others, I'm confused how I ever get to use the losses when I eventually dispose of the property in NJ?
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On Thursday, October 6, 2011 11:48:15 AM UTC-4, SF Man wrote:

You don't. There is no provision for claiming losses on a NJ income tax return. You can net losses in one form of income against income from the same type of income, but you can't claim an overall net loss.
Ira Smilovitz Leonia, NJ
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On Thu, 6 Oct 2011 13:29:58 EDT, ira smilovitz wrote:

That's amazing!
I'm confused (since disallowing losses is foreign to me).
If I sold the NJ rental property, at, say, $300K and I subtract the cost basis of, say, $200K, that's 100K "profit" to pay NJ tax on.
Then I would add back the depreciation taken in all prior years, say, $25K, so now that's a $125K "profit" to pay NJ tax on.
If I have, say, $50K of accrued losses outstanding on that rental, the Federal tax would allow me to decrease that "profit" by that amount to make it only $75K of long-term taxable income.
But, what would NJ tax me on? The $125K (which doesn't include the accrued losses) or the $75K profit (which was reduced to this by the accrued losses)?
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On 10/6/11 4:31 PM, SF Man wrote:

Your NJ capital gain on the disposition uses the federal cost basis. This will result in a capital gain given your example. Your disallowed losses carry forward to the federal Schedule E. Any loss on this schedule affects your ordinary income, not your capital gain income. On the NJ return, there would not be any loss on the NJ Schedule C as they don't allow losses on rental property.
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On Thursday, October 6, 2011 6:31:03 PM UTC-4, SF Man wrote:

No. There is no addback of depreciation taken for NJ purposes. However, there may be a depreciation adjustment in cases where NJ tax law doesn't follow federal tax law with regard to allowable depreciation.

Not NJ. There is no provision for suspended losses or carryforwards/carrybacks. If you have multiple rental properties, you can offset income from one with losses from another. If you can't take the loss in the year generated (and usually you cannot), it's lost forever.

None of the above. You would be taxed on $100K of profit.
Ira Smilovitz Leonia, NJ
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On Wed, 5 Oct 2011 13:19:56 EDT, snipped-for-privacy@yahoo.com wrote:

I don't disagree.
What I found out, surprisingly, from page 4 of the NJ1040NR instructions, is that anyone with a 'gross income' (from all sources!) of over $10,000 (single) or $20,000 (married) must file a tax return for New Jersey.
http://www.state.nj.us/treasury/taxation/pdf/other_forms/tgi-ee/2010/10_1040nri.pdf
Interestingly, nowhere in those instructions could I find a statement saying that income must be "NJ income" ... so ... shockingly, a literal interpretation of the instructions would imply that everyone in the United States must file a NJ tax return!
That anomaly aside, it appears I must file. It turns out that the property is 'only' owned by me, so, I didn't realize until I read that form that I should not be filing jointly. That drops the requirement down to $10,000 but still, since it comes from all sources, the fact is that I need to file.
Would you recommend an amended return for the prior years since I accidentally filed jointly ... or ... just moving forward, to file singly in NJ while filing jointly for the Federal and California?
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On 10/6/11 10:12 AM, SF Man wrote:

http://www.state.nj.us/treasury/taxation/pdf/other_forms/tgi-ee/2010/10_1040nri.pdf
Here is my interpretation of the NJ statutes. If you are a nonresident and if married, your spouse is a nonresident and there is no NJ source income, there is no need to file. This is pretty obvious. If at least one of you has NJ source income, your tax is going to be computed as if you were a resident of NJ multiplied by a ratio that has your NJ sourced gross income as the numerator (Column B on the form) and your NJ gross income if you were a resident (Column A) as the denominator. By law, a resident includes all income from "everywhere". So Column A on the nonresident return is prepared as if you were a resident.
If you filed a federal joint return, you have the option of filing a NJ joint return or a NJ married separate return (given my assumption that both of you are nonresidents). As the amount of tax is computed by using the ratio of Column B (NJ source income) over Column A (total income as if a resident) it is pretty obvious that filing a joint return is beneficial if you both had income but only one of you had NJ source income as it increases the denominator (Column A) and lowers the ratio.
As to filing requirement of a nonresident with NJ source income: The instructions do say you use income from everywhere. Everywhere is the definition for Column A. Therefore, I would conclude, that if you do have NJ source income, your filing requirement is the same as a NJ resident. This is not inconsistent with some other states who use either the same rule or want a return if you filed a federal return and had source income from that state.
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On Thursday, October 6, 2011 12:12:54 PM UTC-4, SF Man wrote:

http://www.state.nj.us/treasury/taxation/pdf/other_forms/tgi-ee/2010/10_1040nri.pdf
No. You must file a NJ nonresident (or resident, if appropriate) return if you have NJ source income of any amount and more than $10K/$20K of gross income from all sources. "NJ source income" means any income or loss from NJ sources, even if such loss is not reported on a NJ income tax return. So, taxpayers who are not residents of NJ and have no income/(loss) sourced to NJ do not have to file in NJ solely because they had more than $10K/$20K of gross income from all sources.

You misread the instructions. Generally, NJ requires the same filing status as federal (except in the case of civil unions). However, if both spouses were non-residents and only one has NJ-source income, that spouse may elect to file a separate return. You aren't required to file separate. There is no need to go back and amend back years. You may want to consider whether you want to file future NJ returns separately or jointly in the future as the filing of a joint return could make your spouse liable for any tax/penalty assessed by NJ in the future.
Ira Smilovitz Leonia, NJ
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On Thu, 6 Oct 2011 13:44:07 EDT, ira smilovitz wrote:

I'm sure I did! :)
There is no way NJ 'could' tax everyone; I was just saying that out of the 47 instances of the word "New Jersey income" in the 45-page "NJ-1040 instructions", I didn't see where it said what you just said (and which must be obvious ... but I don't see it). http://www.state.nj.us/treasury/taxation/pdf/other_forms/tgi-ee/2010/10_1040nri.pdf
NOTE: All these mention "New Jersey income" but none specifically say what you (and I) know must be the case!
1. Compensation paid to Pennsylvania residents employed in New Jersey is not subject to New Jersey income tax (page 4 of 45).
2. You must file a New Jersey income tax return if - your filing status is: Married/CU couple, and your gross income from everywhere was more than: $20,000 (page 4 of 45)
3. You may also be considered a nonresident for New Jersey income tax purposes if you were domiciled in New Jersey and you met all three of the following conditions for the entire year: 1. You did not maintain a permanent home in New Jersey; and 2. You did maintain a permanent home outside of New Jersey; and 3. You did not spend more than 30 days in New Jersey. (page 4 of 45).
4. You Also Need to File a Return if: You had New Jersey income tax withheld and are due a refund. (page 4 of 45)
5. compensation paid to Pennsylvania residents employed in New Jersey is not subject to New Jersey income tax (page 5 of 45)
6. If New Jersey income tax was withheld from your wages, you must file a New Jer sey nonresident return to obtain a re-fund. (page 5 of 45)
7. Withholdings. If New Jersey income tax was withheld, enter the amount from your W-2(s) on Line 44. (page 5 of 45)
8. Signed Statement. Pennsylvania resi-dents employed in New Jersey who had New Jersey income tax erroneously with-held must enclose a signed statement de claring the following, (page 5 of 45)
9. A nonresi-dent service persons military pay is not subject to New Jersey income tax. (page 7 of 45)
10. A nonresident serviceperson is not re-quired to file a New Jersey income tax return unless he or she has received in-come from New Jersey sources other than military pay. (page 8 of 45)
11 & 12. If your permanent home (domicile) was New Jersey when you entered the mili-tary, but you have changed your state of domicile or you satisfy the conditions for nonresident status (see chart on page 4), then your military pay is not subject to New Jersey income tax. File Form DD-2058-1 or DD-2058-2 with your fi-nance officer to stop future withholding of New Jersey income tax. (page 8 of 45)
13. If you are a nonmilitary spouse/civil union partner whose wages are exempt from New Jersey gross income tax, file Form NJ-165, Employees Certificate of Nonresidence in New Jersey, with your employer to stop future withholding of New Jersey income tax. (page 8 of 45)
14. If New Jersey income tax was withheld or estimated payments were made in error, you must file a nonresident return (Form NJ-1040NR) to obtain a refund and en-close a statement explaining how your wages are exempt under the Military Spouses Residency Relief Act along with a copy of your spousal military identifica-tion card. (page 8 of 45)
15. In general, your New Jersey income tax return is due when your Federal income tax return is due. (page 8 of 45)
16. For calendar year filers, the 2010 New Jersey income tax return is due by April 18, 2011. (page 8)
17. For calendar year filers, the 2010 New Jersey income tax return is due by April 18, 2011. (page 8)
18.All New Jersey income tax returns postmarked on or before the due date of the return are considered to be filed on time. 8
19. An extension of time is granted only to file your New Jersey income tax return. (8)
20. Electronic Check (e-check). You may be able to pay your 2010 New Jersey income taxes or make a payment of estimated tax for 2011 by e-check. (page 9)
21. Credit Card. You may pay your 2010 New Jersey income taxes or make a payment of estimated tax for 2011 by credit card. (page 10)
... and so on ...
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On Thursday, October 6, 2011 6:30:41 PM UTC-4, SF Man wrote:

http://www.state.nj.us/treasury/taxation/pdf/other_forms/tgi-ee/2010/10_1040nri.pdf
Your argument is somewhat specious. The starting point for the requirement to file any tax return is generation of income deemed to be sourced from that taxing entity. Each state is free to set the rules which apply to its imposition of tax. When it comes to business entities, the income allocation rules may appear to be unfair, often being based on ratios of sales, payroll and/or assets located within the state.
Also, tax return instructions are not the definitive representation of the law.

NJ wages paid to PA residents is not NJ-source income per an interstate agreement between PA and NJ. It is specifically mentioned because it is an exception to the general rule.
All of the other citations (snipped) help define what is and is not NJ-source income.
Ira Smilovitz Leonia, NJ
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Does that include $0 as the amount?
Both I (haven't been in NJ in 2010, don't own any property or do any business in/with anyone in NJ in 2010) and the OP (owns rental property in NJ with a loss in 2010) have $0 NJ source income in 2010.
Seth
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On Sunday, October 9, 2011 4:48:55 AM UTC-4, Seth wrote:

The determining factor isn't the number shown on the NJ tax return, but the determination of NJ source income using typical accounting rules. In the case of the OP, he has negative NJ source income (a loss), therefore he has to file a NJ tax return. He reports that negative gross income as $0 on the return according the instructions for preparing the return.
Ira Smilovitz Leonia, NJ
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I agree with Alan. NJ is very aggressive about assessing penalties for any presumed infraction. It's far better to file a $0 income return than to run the chance you'll have to fight a late filing penalty. NJ's penalty structure includes a mandatory monthly penalty in addition to any penalty based on the return's contents.
Ira Smilovitz Leonia, NJ
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On Wed, 5 Oct 2011 17:35:01 EDT, ira smilovitz wrote:

California is even worse!
California is the worst in all states, for example, if you fail to file on time.
They can and do assess a 25% penalty on your taxes simply if you don't answer their letters within a month! (Ask me how I know!).
So, if you owe them, say, $10,000 and if you've paid already $12,600 through regularly scheduled deductions ... but you don't answer their letters within a month, they immediately CHANGE your due tax from $10,000 to to $12,500 ... and your final refund will only be $100.
No other state has this heinous penalty simply for filing late but not having ever owed them a penny!
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This violates the 8th amendment "... nor excessive fines imposed, nor cruel and unusual punishments inflicted".
Anyway, what CA law allows for this tax? Some digging around brought me to publication 1024
BEGIN QUOTE http://www.ftb.ca.gov/forms/misc/1024.pdf
Penalty NameFailure to Provide Information Requested/ Failure to File a Return Upon Demand
CA Code 19133
IRS Code None
Reason Any taxpayer for failing to provide requested information, or failing to file a return after notice and demand.
Computation 25% of total tax liability without regard to any
END QUOTE
And then
BEGIN QUOTE http://law.onecle.com/california/taxation/19133.html
If any taxpayer fails or refuses to furnish any information requested in writing by the Franchise Tax Board or fails or refuses to make and file a return required by this part upon notice and demand by the Franchise Tax Board, then, unless the failure is due to reasonable cause and not willful neglect, the Franchise Tax Board may add a penalty of 25 percent of the amount of tax determined pursuant to Section 19087 or of any deficiency tax assessed by the Franchise Tax Board concerning the assessment of which the information or return was required.
END QUOTE
The use of adjectives such as "reasonable" makes things vague.
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