Can this be done legally? You should also know that we need to do this soon. I moved to Florida and have been a legal resident here for the last two years, but my wife has remained a resident in the state where our home is located. Can this work, and is it 100 percent legal?
A: Uh, no. What you want to do won’t work and isn’t legal — even though it sounds as if it should be. We believe the IRS would frown on you and your wife selling the home to yourselves, and even the conveyance from you of your share of the home to your wife shouldn’t qualify as a legitimate transaction.
For our readers playing along at home, here’s the background: If you own a home as your primary residence and have lived in the home as the owner occupant for two out of the last five years, the IRS allows you to avoid paying taxes on up to $500,000 in profits from the sale if you are married, or up to $250,000 in profits if you are single. That’s the general rule in a nutshell. It’s a great benefit to homeowners who have owned their homes for a long time, and who are lucky enough to live in places where real estate prices have gone up substantially over the years.
In your case, you have 25 years of accumulated appreciation, and you expect your net profits (more on how to calculate this in a moment) to exceed $500,000.
We think most folks would be pretty happy to know that you could sell the home you lived in for the last 25 years, take a profit of $500,000 and not pay any taxes on that portion of the profit. It’s a great deal for homeowners.
But your profits exceed $500,000, so in dreaming up ways to avoid paying taxes on the profit above $500,000, you’ve imagined that you can sell the home to your wife. Except that your wife is already an owner of the home. She can’t sell her share of the home to herself.
If you can’t do that, you might wonder about setting up a corporation that is wholly owned by your wife: You and she would sell the property to the corporation that your wife owns. Ah, but this opens up another can of worms. One issue: The corporation would own the property and the $500,000 exemption wouldn’t be available. (By the way, we’re pretty sure that some of our readers have tried this, perhaps even successfully. But we don’t think it passes the “sniff test.”)
At best, you could sell your wife your half interest in the home, but it would seem quite strange to sell your half of the home to your wife and have money go from your (presumably joint) account to her account. You would then have to file a tax return showing the sale, but the funds from that sale would effectively have gone from the right hand to the left hand.
By the way, the IRS takes the position that you have nothing to report to the IRS when you transfer your share of the home to your wife. We have to say that when we first read your question, what you wanted to do seemed more akin to trying to evade paying taxes rather than legitimately not having to pay taxes. (And, yes, there is a difference.)
Having said that, only one of you has to meet the eligibility requirements to get the home sale exclusion so long as you are filing jointly. You might want to read Publication 523 on the Internal Revenue website: “If you owned the home for at least 24 months (two years) out of the last five years leading up to the date of sale (date of the closing), you meet the ownership requirement. For a married couple filing jointly, only one spouse has to meet the ownership requirement.”
So, this might mean that you don’t have to worry about the time you’ve been living in Florida as a resident. You certainly can’t take an exclusion in the home that has appreciated so much and then turn around and immediately take another exclusion if you were to sell the Florida home. But as long as your wife has lived in the home for two out of the past five years, you can take the $500,000 exclusion.
One last thing that you should consider is whether your net profits actually exceed $500,000.
Here’s how you determine your net profit: You take the costs incurred when you purchased the home (the price you paid plus any points) plus the costs of any additions or home improvement projects that were material or structural (renovating a kitchen, but not buying furniture), plus the costs of selling the home (like the broker’s commission). Add these up and subtract the total from the sales price.
Publication 523 has a rather complete list of all of the allowable expenses and improvements. For example, if you install a lawn sprinkler system or security system in the home, those improvements increase the basis in your home. The same goes for wall-to-wall carpeting and new flooring in the home.
With that in mind, you might find out that the repairs, additions and improvements you made to the home over the years adds up to enough that it puts you at or even well below the $500,000 profit threshold. And, if you happen to be above the $500,000 threshold, you will pay taxes at the capital gains rate, which might be as high as 20 percent of the amount above $500,000 plus you may have to pay the 3.8 percent Medicare tax on top of that. Depending on the state in which you live, there may be state tax considerations.
For more details, please consult your tax adviser.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through her website, bestmoneymoves.com.
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