Safe harbor allows QBI deduction for rental real estate businesses

The IRS on Tuesday issued a revenue procedure that provides a safe harbor for taxpayers under which a rental real estate enterprise will be treated as a trade or business for purposes of the qualified business income (QBI) deduction of Sec. 199A (Rev. Proc. 2019-38). Taxpayers whose real estate business does not meet the safe harbor may still qualify as a trade or business if it otherwise meets that definition under the Sec. 199A regulations. The revenue procedure finalizes rules that the IRS proposed in January in Notice 2019-07.

Under the safe harbor, a “rental real estate enterprise” is treated as a trade or business for purposes of Sec. 199A if at least 250 hours of services are performed each tax year with respect to the enterprise. For rental real estate enterprises that have been in existence for at least four years, the 250-hour requirement will be met if, in any three of the five consecutive tax years that end with the tax year, 250 or more hours of rental services are performed per year for the rental real estate enterprise.

The IRS says these hours include services performed by owners, employees, and independent contractors and time spent on maintenance, repairs, rent collection, payment of expenses, provision of services to tenants, and efforts to rent the property. However, hours spent in the owner’s capacity as an investor, such as arranging financing, procuring property, reviewing financial statements or reports on operations, and traveling to and from the real estate, will not be considered hours of service for the enterprise.

A rental real estate enterprise is defined, for purposes of the safe harbor, as an interest in real property held for the production of rents. A rental real estate enterprise may consist of multiple properties. The interest must be held directly or through a disregarded entity. Taxpayers either must treat each property held for the production of rents as a separate enterprise or must treat all similar properties held for the production of rents as a single enterprise. Commercial and residential real estate cannot be combined in the same enterprise.

The safe harbor requires that separate books and records be maintained for the rental real estate enterprise. Property leased under a triple net lease or used by the taxpayer (including an owner or beneficiary of a relevant passthrough entity) as a residence under Sec. 280A(d) would not be eligible under the safe harbor.

Other requirements in the safe harbor are:

• The taxpayer must maintain 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 those services were performed, and who performed the services.
• The taxpayer or relevant passthrough entity must attach a statement to the tax return filed for the tax year(s) the safe harbor is relied upon. This must be done each year.

The safe harbor is effective for tax years ending after Dec. 31, 2017. Because the final revenue procedure differs from the proposed revenue procedure, taxpayers may rely on Notice 2019-07 for the 2018 tax year. The contemporaneous records requirement does not apply to tax years beginning before Jan. 1, 2020, but taxpayers are reminded they must prove they are entitled to any tax deduction they claim.

— Sally P. Schreiber, J.D., (Sally.Schreiber@aicpa-cima.com) is a JofA senior editor.