Capital Gains Tax on a House Sold From a Trust

Source: The Motley Fool

Figuring your tax liability is more complicated when you don't own a home in your own name. Most people don't think much about capital gains tax on the sale of a home, because the tax laws offer a capital gains exclusion of $250,000 to single filers and $500,000 to joint filers when they sell their main home. However, some people use estate planning strategies involving trusts to own their homes, and understanding the effect of having a home within a trust is crucial to make sure that you don't miss out on this key tax break. Below, we'll go into more detail about how to calculate capital gains tax on a house sold from a trust.

The key question: What kind of trust owns the home?

The tax laws treat various types of trusts differently. One key distinction is between revocable trusts and irrevocable trusts. If you have a revocable trust, then the tax laws treat that trust as what is known as a grantor trust. What that means is that even though the trust owns legal title to property contributed to the trust, including real estate, the trust assets are treated for tax purposes as if they still belong to the grantor, or the person who put the assets into the trust in the first place.

As a result, if you meet the tests for the capital gains exclusion, then you can claim the exclusion even if you own the home through a revocable trust. In general, to get the benefits of the exclusion, you need to have owned your home for at least two out of the five years prior to the date of sale, and you have to have lived in the property as your main home for at least two out of the past five years.

By contrast, the rules are much different for an irrevocable trust. Irrevocable trusts are separate legal entities, and so transferring your home to an irrevocable trust makes it impossible for you to claim the exclusion on capital gains. The proceeds from the sale of a home within an irrevocable trust typically stay within the trust, and the trust itself owes the resulting capital gains tax on the profit. Because tax brackets covering trusts are much smaller than those for individuals, you can quickly rise to the maximum 20% long-term capital gains rate with even modest profits on the sale of a home.

However, there is one aspect of an irrevocable trust that you should keep in mind. Often, revocable trusts become irrevocable after the person who created the trust dies. If the home was included in the estate of the deceased owner, then the property will get a step-up in tax basis. That means that even if the trust becomes irrevocable after the deceased owner's death, the trust won't have capital gain if it immediately sells the home. Only if the trust holds onto the property for a time after death will new gains have a chance to start accruing.

Trusts can be complicated, so it's important to know exactly what trust you're working with in a home-sale situation. With the right planning, you can often reach a tax result that will be advantageous to you.

When in doubt, consult a trustworthy CPA! Zhong and Sanchez is dedicated to provide high-quality tax and financial reporting services to privately-held entities and small business owners. Our expertise ranges from income tax filing and accounting services to international compliance and financial analysis. Located in the Silicon Valley, you can reach us at 510-458-4451 or schedule your first free consultation today at https://calendly.com/zhongsanchez

IRS closer to obtaining virtual currency records

U.S. taxpayers who have traded in virtual currencies such as bitcoin, but have not reported and paid tax on the income or gains from those transactions, may face the heat as the IRS continues to press for greater tax compliance in the virtual currency arena.

Some taxpayers may evade their tax obligations by concealing or otherwise failing to report their proper amount of taxable income and thus underpay their taxes, according to the IRS, and the Service has identified several tax-compliance risks associated with virtual currencies, including a lack of third-party reporting.

Tax practitioners should understand how virtual currency transactions work because their clients may already be trading in virtual currency or will be in the near future.

Documents requested by the IRS

The government has been investigating the use of virtual currency that can be converted into traditional currency for the past several years. After the IRS issued Notice 2014-21, which took the position that transactions in virtual currency were property transactions that could result in gain or loss, it then served a John Doe summons on Coinbase Inc., a San Francisco-based virtual currency exchange company, in November 2016. (A John Doe summons, which is issued under Sec. 7609(f), does not name a taxpayer because the IRS does not know the person's name.) 

Most recently, on Nov. 30, 2017, after a lengthy summons enforcement proceeding, a federal district court issued an order granting in part and denying in part the IRS's petition to enforce the summons. The court's order (Coinbase, Inc., No.17-cv-01431-JSC (N.D. Cal. 11/28/17) (order re: petition to enforce summons) requires Coinbase to produce the following documents for accounts with at least the equivalent of $20,000 in any one transaction type (buy, sell, send, or receive) in any one year during the 2013 to 2015 period:

1. The taxpayer identification number;
2. Name;
3. Birthdate;
4. Address;
5. Records of account activity; and
6. All periodic statements.

Once the documents are produced, the IRS will begin sifting through a vast amount of information to identify U.S. taxpayers who the IRS believes are not complying with their tax obligations. Those taxpayers may be subject to civil examinations and potentially owe tax, interest, and civil penalties. Other taxpayers with more serious issues could become subject to criminal investigation — if, for example, they have large amounts of unreported income over several years.

All of this is yet to be determined as the Coinbase case plays out. Taxpayers who think they may have exposure would be wise to take steps to comply, such as participating in the IRS domestic or offshore voluntary disclosure programs, as opposed to waiting for the IRS to catch them.

Notice 2014-21

The IRS laid the groundwork for enforcement in the virtual currency world by issuing Notice 2014-21, which provides answers to frequently asked questions (FAQs) on virtual currency, such as bitcoin. The 16 FAQs in the notice discuss the U.S. federal tax implications of transactions in, or transactions that use, virtual currency. For taxpayers trading in virtual currency, the notice is an important document to understand, and for tax professionals, the notice is a must-read. The IRS also updated its website in March 2014 to include a landing page specifically dedicated to virtual currency and providing an overview of the rules and a link to Notice 2014-21. 

The IRS's position is that virtual currency is treated as property for federal tax purposes and that general tax principles that apply to property also apply to transactions using virtual currency (Notice 2014-21, FAQ No. 1). This means that a taxpayer who receives virtual currency as payment for goods or services must, in computing gross income, include the fair market value (FMV) of the virtual currency, measured in U.S. dollars, as of the date that the virtual currency was received (FAQ No. 3).

Taxable income from buying goods or services

Suppose a U.S. taxpayer, J, located in Mountain View, Calif., performs software contracting services in 2015 for a client, M, located in the Netherlands. J emails M an $8,500 invoice for the work. Instead of sending a check from the Netherlands, M pays J for his consulting services by electronically transferring bitcoin to J's virtual currency account.  

Since the virtual currency is convertible, J cashes out and electronically transfers the funds to his personal bank account. Under Notice 2014-21, J has taxable income equal to the bitcoin's FMV on the date that J received the virtual currency from M (i.e., $8,500). The income is also probably self-employment income subject to self-employment tax (FAQ No. 10).

Taxable gain from buying, selling, or trading

In addition, other transactions using virtual currency trigger a reporting requirement. A taxpayer can have gain or loss upon an exchange of virtual currency for other property just as if a taxpayer sold property and in exchange received cash. Below is a quick summary of the rules:  

• If the FMV of property received in exchange for virtual currency exceeds the taxpayer's adjusted basis of the virtual currency (the taxpayer's cost to purchase the virtual currency), the taxpayer has taxable gain.
• A taxpayer has a loss if the FMV of the property received is less than the adjusted basis of the virtual currency (FAQ No. 6).

Capital gain or loss for property transactions, including those from virtual currency, is reported on Form 4797, Sales of Business Property, which is attached to Schedule D, Capital Gains or Losses, of a federal income tax return.

Adjusted basis of virtual currency

A critical aspect in dealing in virtual currency, and an important step that tax practitioners can assist their clients with, is maintaining adequate books and records to establish a taxpayer's adjusted basis of the virtual currency. A taxpayer's adjusted basis (or cost to purchase the virtual currency) determines the amount of taxable gain or loss.

If a taxpayer becomes the subject of a civil examination, the taxpayer, not the IRS, has the burden of proving cost basis, which normally is accomplished through contemporary documentary evidence. Without credible evidence, the IRS can take the position that the property received in the exchange is fully taxable because it has no basis.  

John Doe summons

On Nov. 17, 2016, the government filed an ex parte petition under Sec. 7609(h)(2) for an order permitting the IRS to serve a John Doe administrative summons on Coinbase, the San Francisco virtual currency exchange company, for information related to transactions conducted in convertible virtual currency (In re the Tax Liabilities of John Does, No. 3:16-cv-06658-JSC (N.D. Cal. 11/17/16)). The IRS sought the identity of U.S. persons who had not properly reported income from their use of virtual currency. 

A John Doe summons is a powerful tool for the government to discover the identity of individuals who may have failed to disclose all of their income (see Bisceglia, 420 U.S. 141 (1975)). Unlike a normal summons seeking information about a specific taxpayer whose identity is known, a John Doe summons seeks information about a group of taxpayers (Secs. 7609 (c)(3) and 7609(f); see also Internal Revenue Manual (IRM) §25.5.7, "Special Procedures for John Doe Summonses"). The IRS may issue a John Doe summons only after a court proceeding in which the government meets three requirements:

1. The summons relates to the investigation of a particular person or ascertainable group or class of persons;
2. There is a reasonable basis for believing that the person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law; and
3. The information sought is not readily available to the IRS from other sources (Sec. 7609(f)).

Unlike a normal court hearing, where both sides submit briefs and participate in the hearing, the court decides the case based only upon a review of the government's petition and supporting documents (Sec. 7609(h)(2)). Coinbase was not permitted to appear in court or to file briefs. An important takeaway is that the government only needs to establish a reasonable basis for believing that a group or class of persons has failed or may have failed to comply with any provision of any internal revenue laws. No further showing is required.

In the Coinbase case, the government pointed to the following evidence, set forth in its pleadings, in support of its petition to enforce the summons:

1. A report issued by the U.S. Government Accountability Office (GAO) regarding tax compliance issues relating to virtual currency;
2. Notice 2014-21, where the IRS set forth its position that virtual currencies that can be converted into traditional currency are property for tax purposes;
3. A second GAO report issued in May 2014 focusing on public policy challenges posed by the use of virtual currencies; and
4. A signed declaration by an IRS senior Revenue Agent, who had gathered information regarding tax compliance issues posed by the use of virtual currency (In re the Tax Liabilities of John Does, No. 3:16-cv-06658-JSC (N.D. Cal. 11/17/16) (memorandum in support of ex parte petition for leave to serve John Doe summons)).

After reviewing the government's petition and supporting documents, on Nov. 30, 2016, the federal district court issued an order granting the ex parte petition for leave to serve a John Doe summons on Coinbase (In re the Tax Liabilities of John Does, No. 3:16-cv-06658-JSC (N.D. Cal. 11/30/16) (order granting ex parte petition for leave to serve "John Doe" summons)).

Summons enforcement proceedings

When the IRS served the John Doe summons on Coinbase, the company refused to comply, so the government filed a petition in federal district court to enforce it. On Nov. 28, 2017, after briefing and an oral hearing, the court issued an order enforcing the summons. A few observations are worth noting about the summons enforcement proceeding in federal district court:

• The court found that the IRS summons served a legitimate purpose of investigating the reporting gap between the number of virtual currency and bitcoin users reporting gains or losses to the IRS. The court relied, in part, on the IRS's assertion that only 800 to 900 taxpayers reported bitcoin gains to the IRS during each of the relevant years.
• However, the court ruled that the summons went beyond seeking relevant information and narrowed the scope to a limited category of documents.
• The court's opinion provides insight into the scope and type of documents the government can obtain in a summons enforcement proceeding dealing with a virtual currency exchange company.

What to expect

The next step is for the IRS to begin sifting through the Coinbase data and identifying U.S. taxpayers who the IRS believes are not complying with their tax obligations by comparing the information received from Coinbase with information reported by taxpayers on their returns. Some U.S. taxpayers may be selected for audit.

The IRS will be looking for unreported income (e.g., gain from the sale or exchange of virtual currency based upon a review of a taxpayer's periodic account statements), and taxpayers may face, at a minimum, the civil accuracy-related penalty (a 20% penalty under Sec. 6662) and possibly the civil fraud penalty (a 75% penalty under Sec. 6663). In cases with larger amounts of unreported income over a number of years, the IRS could refer the case to IRS criminal investigation (see Fink, 1 Tax Controversies: Audits, Investigations, Trials §5.01 (2017)). 

Looking forward

The best course of action now for U.S. taxpayers who have used virtual currencies is to take steps to comply and minimize their exposure through, for example, the IRS voluntary disclosure process. Cases are harder to resolve, and the civil penalties can be greater, after the IRS contacts a taxpayer. Expect the IRS to be most interested in U.S. taxpayers who have traded in virtual currency. If a taxpayer is contacted, however, the following points are worth considering for tax professionals representing a client during a tax audit:

1. Although the government has issued its position in Notice 2014-21 that virtual currency transactions are taxable as property, it is uncertain whether certain virtual currency transactions are actually subject to U.S. taxation. Tax professionals should carefully review the virtual currency exchange transactions, get a handle on the facts early on, and develop a defensible strategy as to the amount of unreported income.
2. Notice 2014-21 recognizes that penalty relief may be available to taxpayers who are able to establish that the underpayment of tax is due to reasonable cause.
3. Where the law is vague or unsettled on whether a transaction has generated taxable income, courts have found that the defendant lacked willfulness, which is a defense to tax evasion or the civil fraud penalty (Office of Chief Counsel, Criminal Tax Division, IRS Tax Crimes Handbook, p.  10 (2009), citing Harris, 942 F.2d 1125, 1131 (7th Cir. 1991) (involving payments by wealthy widower to mistresses where civil tax cases had held such payments were gifts); Garber, 607 F.2d 92, 100 (5th Cir. 1979) (novel issue of tax treatment of money received from sale of rare blood)). There is no question that taxation of virtual currency transaction is a relatively new and complex area of tax law.
4. A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law is a defense to willfulness (e.g., tax evasion or civil fraud penalty); a taxpayer simply may not have known that he or she had to report and pay tax on certain virtual currency transactions that the taxpayer had not converted into traditional currency (Cheek, 498 U.S. 192 (1991); Stadtmauer, 620 F.3d 238 (3d Cir. 2010)).

Compliance is key

Virtual currency tax cases are a new and evolving area of the law, and further developments are expected as cases begin to be worked by IRS agents and eventually wind their way through the agency and the courts. U.S. taxpayers who have traded in virtual currency would be wise to seek the advice of competent tax counsel, who can evaluate the case, explain the options, and develop a defensible strategy.  

Source: https://www.thetaxadviser.com

Phantom stock: Termination of right to buy or sell, treatment of asset and basis

In Hurford Investments No. 2, Ltd., No. 23017-11 (Tax Ct. 4/17/17) (order), the Tax Court considered whether the redemption of phantom stock was treated as a sale of a capital asset and what the tax basis in the redeemed phantom stock was.

Background

Gary Hurford owned "phantom stock" in Hunt Oil Co. The phantom stock was a form of deferred compensation that Hunt Oil paid to its employees; a share of phantom stock was valued at approximately the share price of Hunt Oil's common stock and would be adjusted for its increase or decrease in value at the end of each calendar year.

Under the terms of the phantom stock agreement, after Hurford's death, which was considered a "qualified termination of service," a five-yearcountdown was started. During this time Hunt Oil would continue to pay out dividends and adjust the stock for any growth or decline in value. At the end of the fifth year Hunt Oil would automatically redeem the stock; both parties had the right to liquidate the account at any time.

When Gary Hurford died in 1999, Thelma Hurford, his wife, inherited the phantom stock. Thelma decided to transfer the phantom stock into Hurford Investments No. 2 Ltd. (HI-2) in 2000, one of three limited partnerships Thelma's attorney formed as part of her estate plan after Thelma was diagnosed with cancer. On March 22, 2000, Hunt Oil formally recognized HI-2 as the holder of this stock. At the time of the transfer, the value of the stock was $6,411,000, and the receipt was reported on HI-2's Form 1065, U.S. Return of Partnership Income, as a short-term gain.

Thelma died in 2001, and the value of the stock on the date of her death was $9,639,588. In 2004, the five-year period that began on Gary's death was up, and Hunt Oil exercised its right to terminate the phantom stock. In 2006, Hunt Oil distributed $12,985,603 to HI-2. The IRS argued that the difference between the $12,985,603 distribution and $6,411,000 should be treated as ordinary income (deferred compensation) and argued that HI-2 should be considered an invalid partnership for federal income tax purposes since there was no transfer of phantom stock until after Thelma died. HI-2 and the estate argued the phantom stock should be treated as a long-term capital asset in HI-2's hands, which would also establish HI-2'svalidity as a holder and recognize it for income tax purposes.

Is phantom stock a capital asset?

In Thelma Hurford's hands, the termination of phantom stock generated ordinary income (deferred compensation), but it is pertinent to note that the character of property may change depending on who holds it, e.g., a laptop is inventory for a retailer but a capital asset for most buyers. "Capital asset" has a broad definition under Sec. 1221, which defines the term as all property that is not specifically excluded in a list of exceptions. The types of property excepted from Sec. 1221 are (1) stock in trade; (2) depreciable property used in a trade or business; (3) a copyright or other similar item; (4) an account or note receivable acquired in the ordinary course of business; (5) a U.S. government publication; (6) a commodities derivative financial instrument; (7) a hedging transaction; or (8) supplies used or consumed in the ordinary course of business.

Because HI-2's interest in the phantom stock does not fit into one of the exceptions listed in Sec. 1221, the Tax Court found that it was a capital asset. This designation makes more sense when one thinks about the nature of the asset. HI-2acquired an asset that had its value linked to the stock value of Hunt Oil, and HI-2 had no influence over the underlying Hunt Oil common stock, holding it in the hope that it would appreciate. According to the Tax Court, this distinguishing characteristic is enough to conclude that the phantom stock was a capital asset.

Does Hunt Oil's redeeming the phantom stock constitute a sale?

Under Sec. 1234A(1), the gain or loss attributable to the cancellation, lapse, expiration, or other termination of a right or obligation for property that is a capital asset in the taxpayer's hands is treated as a gain or loss from the sale of a capital asset. HI-2 argued and the Tax Court agreed that when Hunt Oil liquidated the phantom stock and distributed the proceeds to HI-2, it ended HI-2's right to sell the phantom stock. Thus, under Sec. 1234A, there was a termination of a right to buy or sell a capital asset, and HI-2 was entitled to capital gain treatment.

What is the basis of the stock?

The IRS argued the basis of the stock should be $6,411,000, which was HI-2's original interest in the phantom stock upon Gary Hurford's death; the difference between the value at termination of $12,986,603 and $6,411,000 would be the long-term gain. HI-2 argued that the basis in stock should be stepped-up to the value of $9,639,588 as of Thelma's death. Because the phantom stock was included in Thelma's estate, the Tax Court found that HI-2 was entitled to a step-up in basis under Secs. 1014(a) and 1014(b)(9). The court noted that Sec. 1014(c) specifically excludes from step-up in basis "property which constitutes a right to receive an item of income in respect of a decedent under section 691." However, it concluded that Sec. 1014(c) did not apply because the phantom stock had been converted into a capital asset in HI-2'shands and as such was no longer an item of income in respect of a decedent.

'Appreciation' is a hallmark of a capital asset

According to the Tax Court, the phantom stock was a capital asset in HI-2's hands as determined by Sec. 1221; it was treated as long-term capital gain when Hunt Oil terminated the program and liquidated the phantom stock account. The partnership could not affect the value of the stock in any way and could only hope for the phantom stock value to appreciate; this characteristic was enough to classify the stock as a capital asset. Per Sec. 1234(A), it was also determined that Hunt Oil's liquidation of the stock was a termination of HI-2's right to sell the phantom stock and constituted a sale of an asset. Lastly, the partnership had basis in the phantom stock equal to its fair market value as of Thelma's death. The fair market value of $9,639,588 was included in Thelma's estate, and under Sec. 1014(b)(9), that was the partnership's basis in the stock.

Source: https://www.thetaxadviser.com/