By Benny L. Kass
Saturday, October 11, 2008

Q. Is it a good idea to deed our house to one of our children, or would it be better to just put these instructions in our wills? What is the downside to doing this?

A. There may be serious tax consequences if you transfer your property to your children while you are living. You might not be doing them a favor.

Let's take this example: You bought a house many years ago for $75,000. It is now worth $500,000. You have added $25,000 of improvements. Your basis for tax purposes is $100,000.

You want to be nice to your daughter and decide to give her the house. Because the basis of the person giving a gift becomes the tax basis of the recipient, your daughter is now the proud owner of a house with your low tax basis.

You downsize to a smaller property and move out.

Now, your daughter has several choices. She could immediately sell the house, for $500,000. She pays a real estate commission and other closing costs of $30,000. For tax purposes, because her tax basis is only $100,000, she would make a profit of $370,000 ($500,000 minus $30,000 minus $100,000).

If property is held for less than one year before it is sold, the seller cannot claim capital gains treatment. Instead, the profit is taxed as ordinary income. If, for example, your daughter is in a 30 percent tax bracket, she would have to pay as much as $111,000 in federal income tax. However, because she received a gift from you, the time in which you owned the property is added to her holding period. Assuming that you have owned the property for more than one year, your daughter would be taxed at 15 percent, which is the current rate for capital gains. Even so, she would still have to pay the IRS $55,500, plus any applicable state and local tax.

She could instead decide to move in and make the house her principal residence. If she owns and lives in the property for two out of the five years before it is sold, she can exclude up to $250,000 of any profit (or up to $500,000 if she is married and files a joint tax return). Again, that profit is calculated using your low tax basis. While we all hope that property values will appreciate in the years to come, even if she gets only $500,000 for the house, she might still have to pay some tax on her gain, especially if she is not married. And clearly, if she sells the house and makes a profit of more than $500,000, she would owe money to the IRS.

If your daughter decides not to move in, she could consider a Section 1031 exchange, also known as a Starker or like-kind exchange. This is a way to defer taxes on profit from the sale of investment property. Once again, there is a big risk. To have a successful exchange, the property being exchanged (called the "relinquished" property) must have been held for investment. If she immediately put the property on the market after taking title from you, the IRS would take the position that the house was not "held" for investment and would reject the exchange transaction.

Finally, your daughter could rent out the house and become a landlord. Under this scenario, while she could later do a Starker exchange, she would have lost the opportunity to claim the up-to-$500,000 gain exclusion.

Now, let's change the facts. You decide to leave the property to your daughter after you die. Your daughter would be able to take advantage of what is known as the "stepped-up basis." In simple terms, this means that the value of the property on the date of your death becomes the basis for the person who inherits the house.

So if the house is appraised at $500,000 at the time of your death, your daughter could sell it for that price and pay no capital gains tax. If she sold it for more than the valuation at death, she would have to pay some tax on that profit.

To take advantage of this stepped-up basis, you have to receive the property by "bequest, devise or inheritance." That's legal language meaning that you inherited the property when the previous owner died.

The answer to your question is not easy. Much depends on your daughter's plans. If she wants to live in the house and you are definitely planning on moving out, then it might be a good idea to give her the house.

But there are other options. Talk with your tax and financial advisers about selling her the house and taking back a mortgage. She would make monthly payments to you. If she cannot afford those payments, you have the right to give her (completely tax-free for both of you) up to $12,000 a year. This gift would help to reduce the value of your estate while at the same time assisting your daughter with the mortgage payments. She can even offset $1,000 a month to reduce her mortgage obligations to you.

There is one catch to all of this. Unless Congress changes the law, as of Jan. 1, 2010, the stepped-up-basis rules will no longer be in effect. Instead, Congress has replaced them with a modified carryover basis. This means that if you die after the target date, your daughter's tax basis would be the lower of your adjusted tax basis (which in our example was $100,000) or the fair market value on the date of your death.

The bottom line: Should you die after Jan. 1, 2010, your daughter's basis would be the same as yours, $100,000. As that time approaches, you might as well consider giving her the house or selling it to her.

There is one additional issue you should consider. Make sure all your children understand your rationale for wanting to give the house to just one of them. You don't want your other children angry at you or each other, now or after your death.

For more information, go to the IRS Web site ( http://www.irs.gov) and click on "Publications" to get Publication 523, "Selling Your Home."

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, www.kmklawyers.com.