IRS Finalizes Safe Harbor for Rental Real Estate to Qualify as a Business for Qualified Business Income Deduction
The IRS recently finalized a safe harbor for certain interests in rental real estate, including interests in mixed-use property, to be treated as a trade or business for purposes of the qualified business income deduction under section 199A of the Internal Revenue Code.
The safe harbor is available for taxpayers looking to claim the section 199A deduction with respect to a “rental real estate enterprise.” For purposes of the safe harbor, a rental real estate enterprise is defined as an interest in real property - a single property or multiple properties - held to generate rental or lease income. The taxpayer or a relevant passthrough entity (RPE) relying on this revenue procedure must hold each interest directly or through an entity disregarded as an entity separate from its owner, such as a limited liability company with a single member.
The following requirements must be met by taxpayers or RPEs to qualify for the safe harbor:
- Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise.
- For rental real estate enterprises that have been in existence less than four years, 250 or more hours of rental services are performed per year. For other rental real estate enterprises, 250 or more hours of rental services are performed in at least three of the past five years.
- The taxpayer maintains contemporaneous records, including time reports, logs, or similar documents, regarding the following: hours of all services performed, description of all services performed, dates on which such services were performed and who performed the services.
- The taxpayer or RPE attaches a statement to the return filed for the tax year(s) the safe harbor is relied upon.
If all requirements are met, an interest in rental real estate will be treated as a single trade or business for purposes of the section 199A deduction. If an interest in real estate fails to satisfy all the requirements of the safe harbor, it may still be treated as a trade or business for purposes of the section 199A deduction if it otherwise meets the definition of a trade or business in the section 199A regulations.
For more information, visit www.irs.gov/taxreform.