Obliged to take RE tax on Sched E?

Feb 22, 2014 20 Replies

I don't recall ever seeing anything truly "authoritative" on that issue one way or the other. Clearly, Stussy believes the answer is "yes," but I'm not so sure.

My own view has been that you could PROBABLY carry over such unused losses to a new property, but only if acquired within a relatively short time frame, let's say up to 2 years. But I'm not saying this is a bright line rule. I'm simply suggesting it as an approach that could be taken on a "facts and circumstances" basis. =========== The instructions for form 8829, line 8 make that clear: Schedule C gain/loss as adjusted by Schedule D/Form 4797 (for gains on the property less personal loss components disallowed).

As for the carry forwardd of unused losses to other properties and activities where a "business use of home" is involved, I recall an after-conference conversation I had with Mr. Andre Re, the IRS speaker who

10 years ago used to give the annual tax year changes seminar (at their Nationwide/[e-file] Tax Forums), in which I pointed out these issues and he couldn't point to any other outcome.

Note that Section 280A takes precedence - because of it, there is no loss (including property taxes/interest) for the passive loss rules to apply. Even if there were a loss, Section 469(j)(10) specifically states that amounts of an activity subject to 280A are disregarded for passive loss rules (i.e. they cannot generate passive net income or loss).

Without the passive loss rules, there is no writeoff of carried-forward losses in excess of gain when the property is sold.

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