Real Estate Safe Harbor – Rental Real Estate – IRC Section 199A “Qualified Income Deduction”

Congress enacted IRC Section 199A to provide a deduction to non-corporate taxpayers of up to 20 percent of the taxpayer’s qualified business income from each of the taxpayer’s qualified trades or businesses, including those operated through a partnership, S corporation, or sole proprietorship, as well as a deduction of up to 20 percent of aggregate real estate investment trust (REIT) dividends and qualified publicly traded partnership income.

IRC Section 199A(d) defines a qualified trade or business as any trade or business other than a specified service trade or business (SSTB) or the trade or business of performing services as an employee. Section 1.199A-1(b)(14) defines trade or business, in relevant part, as a trade or business under IRC Section 162 other than the trade or business of performing services as an employee.

In Notice 2019-07, the IRS provided taxpayers a safe harbor for rental real estate to qualify as a “trade or business” for purposes of Section 199A. The safe harbor requires the maintenance of books and records, the performance of at least 250 hours per year of rental services, and the maintaining of written records regarding the services.

The safe harbor will not apply to property leased under a ‘triple-net’ lease.

TM or SM? Use of Trademark (TM) and Service Mark (SM) Symbols

One common question related to the use of a trademark surrounds the use of the symbols “TM”, “SM” and ®. There can be some confusion about which symbol to use with a particular trademark and also when a symbol should be used with a trademark. The “TM” and “SM” symbols should be used to designated ownership in a trademark whether or not an application to register the trademark has been filed with the U.S. Patent and Trademark Office (USPTO). The “TM” symbol is used with a trademark representing goods and the “SM” symbol is used with a trademark representing services. Use of the proper trademark symbol next to the trademark alerts the public the owner is claiming ownership of the trademark. The ® symbol is used for a registered trademark with the USPTO, and should only be used by a trademark owner who has successfully completed the registration process for the trademark with the USPTO. The ® symbol designates a registered trademark with the USPTO and exclusive ownership of such trademark.

Bonus Depreciation – Late Elections for Bonus Depreciation

On July 31, 2019, the IRS issued Rev. Proc. 2019-33, which allows taxpayers to change their elections regarding bonus depreciation for property acquired after September 27, 2017 and placed in service during the taxpayer’s 2016 or 2017 taxable year. Under the revenue procedure, a taxpayer may make late elections to use bonus depreciation on such property or revoke its election to use bonus depreciation. These changes use the automatic consent procedures of Rev. Proc. 2018-31 and are generally made by filing an amended return or a Form 3115.

Read More: Rev. Proc. 2019-33

Business Plans

1.  What is a “business plan” and do I need one?

A business plan is a structured document consisting of a sales pitch for your new or expanding business.  The business plan is used primarily when attempting to obtain formal financing.  Most small businesses will not need a business plan since either financing is not required or is being obtained other than by bank loans.

A business plan is NOT a planning document and does NOT take the place of a strategic plan for your business.

2.  Do I need to incorporate or form a business entity?  Does a sole proprietorship work better if my business consists of only me?

A business entity protects your personal assets from liability for claims against your business.  Without the protection of a business entity, it is possible your personal assets could be used to satisfy a judgment related to your business activities.  With a business entity in place, the entity serves to shield your personal assets from claims against your business.  Sole proprietors do not receive limited liability protection for their personal assets from their business form.