Unmarried co-titled adults fulfilling 24-out-of-60-month occupancy eligible for 250K exemption

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DEAR BENNY: My partner and I have a very serious decision to make quite soon. Can unmarried, co-titled adults on a property, having fulfilled the 24-out-of-60-month occupancy requirement each be eligible for the $250,000 exemption? –Pamela

DEAR PAMELA: The answer is yes. So long as both of your are on title, and have owned and lived in the property for two out of the five years before the property is sold, each of you is entitled to take the up-to-$250,000 exclusion of gain.

For more general information, I suggest that you go to http://www.irs.gov, click on Publications, and access and print Publication 523, entitled “Selling Your Home.” In fact, the Internal Revenue Service has a number of publications on many aspects of real estate, and all are free and worth reading.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column.

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“unforeseen circumstances” allow loophole for cap gains exemption?

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DEAR BENNY: I was told by a prominent accountant that there is a loophole in the law that states that you can be exempt from paying capital gains (if you are in a home less than the two-year period) if there are “unforeseen circumstances” involved. Are you aware of this? Can you double check to make sure? This accountant is well trusted by a lot of businesspeople! At the time I was going through an “unforeseen” divorce. –Patricia

DEAR PATRICIA: In general, in order to take advantage of the up-to-$500,000 exclusion of gain ($250,000 if you file a separate tax return), you have to own and live in the house for two out of the five years before it is sold. However, the law does allow a partial exclusion under certain circumstances. There are three “safe harbors” (meaning that if you meet these tests the IRS will not challenge you): (1) change in employment; (2) health; and (3) unforeseen circumstances. In this third category, if you could not have anticipated an event before you purchased your house, you may also be able to claim a partial exclusion. While this is fact-specific — and in many cases you will have to get a special ruling from the IRS — there also are some safe harbors that the IRS will recognize. These include: an involuntary conversion of your house; natural or man made disasters resulting in a casualty to your home; divorce or legal separation; and multiple births resulting from the same pregnancy.

It would appear that you may qualify based on your divorce. The exclusion is equal to the number of days of use times the quotient of $500,000 divided by 730 days. Note that 730 days is two full years. If you are single — or do not file a joint tax return — change the $500,000 to $250,000.

Your accountant knows what he is talking about so you should ask him to do the calculations. However, I do not think he said that you can escape all capital gains tax.

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“Primary residence date,” When’s when for tax deduction?

DEAR BENNY: My question is about the two-year residence requirement for tax exemption when selling your main residence. We owned the bare land for years and built a home on it in 2006. We actually moved out of our rental and into the home on Nov. 6, 2006, and by Dec. 31 the home was 99 percent complete. However, the final approval wasn’t signed off until March 2007 when the required pool cover was installed. When I read the law, it states “primary residence date,” but would that be the date we actually moved in or from date of final sign off by the building department? –Carol

DEAR CAROL: Yours is an interesting question that will have lawyers and probably the IRS issuing dozens of opinions, many of which will be contradictory.

I don’t know the answer. The law says that you have to have owned and lived in the house for two out of the five years before the property is sold. I would argue that the target date would be when you actually moved into the house, namely November 2006. But if you can hold off until March 2009 — which will be two years after you received the final clear-off from the county — that would be the safest course to take.

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States to turn $8,000 home-purchase tax credit into cash!

Instead of making buyers wait until they receive their tax refunds, some states have created bridge-loan programs that advance purchasers the money they need for their closings.

Reporting from Washington — For the housing market, it’s the equivalent of financial alchemy, and it’s hot: Turning the $8,000 federal home-purchase tax credit, which normally isn’t spendable until after you’ve gotten your refund, into immediate, hard cash, available for your down payment and closing costs.

Congress’ stimulus-bill tax credit for 2009 is generating efforts nationwide to find ways to “monetize” it — providing money upfront to buyers who need dollars for down payments right now, not next year after they file their federal returns and get refunds. The credit is available only to qualified taxpayers who have not owned a house during the previous three years, and who close by Nov. 30, among other requirements. Buyers can amend their 2008 returns to claim the credit or claim it on returns for 2009.

In recent weeks, at least 10 states say they’ve come up with ways to work this monetary magic. They have created innovative bridge-loan programs that advance credit-eligible buyers the cash they need for their closings. Generally the advances take the form of second mortgages — with or without interest charges — that become due and payable whenever buyers receive their credits in the form of refunds from the Internal Revenue Service.

In Missouri, which was the first state to create such a program, buyers can get a no-cost “tax credit advance” of up to 6% of the home price. The advance is actually an interest-free second lien that is repayable no later than June 2010, once the buyers have received their $8,000 tax credit.

If buyers can’t meet that repayment deadline, the advance morphs into a traditional second mortgage with a 10-year payback term and a fixed interest rate one-half a percentage point higher than their first mortgage rate. The underlying first loans are all fixed-rate 30-year mortgages issued by private lenders participating with the tax-exempt bond programs of the Missouri Housing Development Commission.

Colorado kicked off a similar program, known as JumpStart, on April 14. Delaware, New Jersey, Tennessee, Idaho, Washington state, Ohio, Pennsylvania and New Mexico have come out with their own versions, some with modest interest charges on the second mortgage from the beginning.

In Washington, where the state Housing Finance Commission already runs a tax credit bridge-loan program for buyers using its mortgages, state Treasurer James McIntire wants to make it much bigger. He has been pushing for creation of a “public-private” down-payment program that could reach far larger numbers of consumers than is possible under the housing commission’s current funding constraints.

McIntire has proposed depositing $25 million of state funds into interest-earning accounts at an FDIC-insured bank. The bank would then provide revolving lines of credit to the state housing commission to greatly expand its down payment bridge-loan efforts. In a novel arrangement, the Washington Assn. of Realtors has pledged $400,000 as a backstop for McIntire’s plan to cover any unexpected losses on the credit monetization transactions. The state Legislature has authorized the program in its new budget.

McIntire is also trying to persuade the Obama administration to allow the state to tap into bridge loan-assisted home buyers’ amended 2008 tax returns and be directly assigned all or a portion of the tax credit refunds. Under current IRS rules, McIntire said, tax refund checks are sent only to the taxpayer’s address. To ensure prompt repayment of bridge loans, the state would like to have refunds mailed to the housing finance commission in cases in which repayment of a bridge loan is due.

Bottom line: Since other state housing agencies reportedly are considering rolling out credit-monetization programs on their own, stay tuned in here to keep your eye on what’s happening in CA. A no-cost advance tied to the $8,000 credit just might get you the down payment and closing cash you need. And be prepared by looking in on and working on your credit.

By Kenneth R. Harney
Los Angeles Times

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