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Level 10
March 29, 2025
Question

LLC holding rental house that is used personally

  • March 29, 2025
  • 3 replies
  • 22 views

1. Client's mother gifted a house to her and her brother in 2024. 2. Then, she formed a partnership with the brother (an LLC.) 3. The costs to operate the house flowed through on K-1s. 4. The house is for family use; it is NOT rented to the general public. Are the expenses on Line 1 and Line 2 deductible?  I don't think they are deductible. And, if that is correct, why did they hire a CPA to prepare a 1065?

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3 replies

Level 5
March 30, 2025

The formation of the LLC could be for ease of management & for estate tax reasons. Best case, they engaged an attorney to write an operating agreement that will help the family manage and use the property over the years, maybe even generationally.

The expenses could be partly deductible - i.e. property taxes and potentially interest. Should not be on lines 1& 2, though. Should be on Sch K in the other deductions section. Maintenance & other expenses would be nondeductible if the property is used only personally.  Forming an entity doesn't change the nature of the expenses, which have to follow the use of the property.

If it has property taxes or other federally deductible items to report, then 1065 is required to be filed, but even if not required, could be worth the expense if it forces them to account to each other at least annually for contributions made & expenses incurred, assuming the capital account section is completed.

BobKamman
Level 15
March 30, 2025

Let me guess, Mom still lives in the house?  But now if she goes to a nursing home, the taxpayers cover the expense while the kids go on a cruise?  Or maybe this is a second home that has been in the family for years.  Too bad they don't get stepped-up basis if they decide to sell after Mom's death.

@Karen_pdx writes that "The formation of the LLC could be for ease of management & for estate tax reasons."  Well, you see how easy it makes management.  As I have noted previously, there are two kinds of state, those like California that have an annual fee for LLC's ($800 in CA, right?) and those that soon might, as Washington cuts off funding.  There's really no way this saves on estate taxes, but that sounds good. 

If they're trying to evade the $10K SALT cap, they can't do it with a properly-prepared K-1.  Since they're not in business, they shouldn't be preparing a 1065 with any amounts on it anyway.  Zero income, zero deductions, attach a statement that says "personal assets only."  Substance over form.  

Level 5
March 30, 2025

If mom retains a life estate, the value of the real estate is actually includible in her estate, so there would be a step up for the real estate on mom's death. If so, there's no difference in mom's estate taxes, but the kids know the real estate can't be transferred to someone else (lots of cases of people unduly influencing the elderly to make transfers that undo other estate planning).

But the estate tax savings referred to could be discounts at the death of the kids, since they would own an LLC interest, not a direct interest in real estate. That could mean a discount for lack of marketability, depending on the terms of the operating agreement. It also means if the real estate is in California or any other state different from where the kids reside, they won't have to probate in the state where the real estate is located. LLC interests are personal property taxable in the state of residence of the decedent, even if the LLC owns real estate.

The use of an LLC to own commonly managed assets that could be income producing or at least could appreciate is not all that unusual. The only other option for management of the assets would be a trust, but that doesn't allow the beneficiary any legal right to participate in management decisions, the way an LLC can. 

Level 10
March 31, 2025

Thank you both. 

Best case, they engaged an attorney to write an operating agreement that will help the family manage and use the property over the years, maybe even generationally.

Today I got the facts:

1. Mom gifted house and money to the kids for estate planning. Then the kids formed the LLC/partnership and contributed the house to it.

2.  The Mom rents the house at an arms-length transaction.  I think this is what qualifies them for trade/business treatment.

3. There were no other tenants. 

Active/Passive/Material participation was an issue that arose.

The use of an LLC to own commonly managed assets that could be income producing or at least could appreciate is not all that unusual. 

The estate matters are outside of my tax practice. Thank you for the learning, Karen.

BobKamman
Level 15
March 30, 2025

Partnership
A partnership is the relationship between two or more persons
who join to carry on a trade or business, with each person
contributing money, property, labor, or skill and each expecting to
share in the profits and losses of the business whether or not a
formal partnership agreement is made.

Domestic Partnerships
Except as provided below, every domestic partnership must file
Form 1065, unless it neither receives income nor incurs any
expenditures treated as deductions or credits for federal income
tax purposes.