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CAPITAL GAINS TAX CLARIFIED
The 1997 Taxpayer Relief Act permits taxpayers to retain, tax free, up to $500,000 (for married couples) in capital gain upon the sale of a personal residence. Single taxpayers may obtain up to $250,000.
To qualify for the exemption, the taxpayer must have occupied the home for at least two of the previous five years prior to sale. Recently the IRS clarified that the act also provides taxpayers who live in the property for less than two years the right to shield a portion of their gain from taxation. To qualify, the sale of the property must have been because of a change in employment, health reasons or other "unforeseen circumstances".
The law provides that this "proportional" benefit means that if a taxpayer lives in the property for one year instead of two (and meets one of the above reasons for sale), a single taxpayer may pay no tax on up to $125,000 worth of gain ($250,000 if married) as opposed to having to pay the tax that would otherwise be owed.
The original law further was unclear regarding the test for "unforeseen circumstances". There was no consent on what the phrase actually meant. Even now there is little agreement on what constitutes "unforeseen circumstances".
When the 1997 regulations were published, the "two out of the last five year" rule made for some interesting scenarios under which sellers might escape paying taxes. Note that the seller does not have to be living in the home at the time of the sale, but merely must have lived in the home two of the last five years. One of the other aspects of this law is the ability for investors to move into and occupy a rental property (thereby converting it into a personal residence) for two years and then sell it and benefit from the up to $500,000 exemption. Remember, one can take advantage of this benefit every two years.
Another clarification from the IRS involved the interest deduction regarding loans that over encumber a property. The IRS indicates that the interest on loan amounts that exceed the value of the home is not eligible for a tax deduction. In other words, the equity interest deduction is limited to interest on loan amounts up to but not greater than the market value of the home less current acquisition indebtedness. $100,000 is the maximum limit, under all circumstances, for the equity loan interest deduction benefit. In order to enforce this rule, the IRS is prepared a revised 1098 form to be sent annually to all mortgage lenders and home loan borrowers, with a mandatory copy to the IRS. Most ads that involve over encumbering property now suggest (in the fine print) that a borrower should consult a tax advisor.
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