NEED TAX ATTORNEY CPA ADVICE, TRAVEL TIME FOR RE PRO TEST

NEED TAX ATTORNEY CPA ADVICE, TRAVEL TIME FOR RE PRO TEST

Investor · Beverly, MA · Member since 2016 · 56 posts · 24 votes
Im reaching out to all the real estate tax attorneys lawyers CPA etc. I want to start by saying that I have contacted both tax attorneys and CPAs in my local area and have not made much progress after those meetings, so please refrain from that suggestion. I'm looking for actual experience with the following issue. I have been reading a lot about the real estate professional tests. My question is geared towards whether the time spent going to and from or at the very least to my rental properties can count towards the hours needed to establish my real estate professional status? I can find countless case law in support of this but they all vary somewhat with respect to the details of each case I find. In some, travel time TO AND FROM was allowed, in others it was not. Most if not all cases where it was not allowed the tax payer did not keep day to day records or their records were lacking some substantial level of detail. I have no issue with the contemporaneous nature of my records or the level of detail contained in them. In interpreting the IRS tax code it states that travel time is not considered material participation but in other IRS guidance docs they state that they have no real definition of what constitutes travel etc. In other IRS publications travel mileage is allowed as a deduction, that said, if mileage is deductible because it is a business expense then it is logical to believe the time spent in that activity constitutes a business activity and as such you'd think it would count towards material participation. In my case my LLCs are registered to my home address where my home office is located, which I believe establishes that my tax home is then my home address. In my case I did not file for a home office because of the hassles that may ensue, however that is not being scrutinized, at least not yet. However, all legal docs, utility bills, business banking statements, leases you name it list my home address on them. I'm constantly transporting materials, tools, to my properties so I can complete repairs etc. I also conduct all one on one tenant meetings, transactions, almost all meetings with anyone related to my business activities at either the property or my home office. I do not use property management or any other service provider outside of those required to be licensed in my real estate rental business. I am the definition of self management. I do have other income in the form of Engineering consulting that I do on a regular basis and I am paid hourly to do it, billing for for each hour spent in that activity, with sound records for that as well. I'm looking for a sound defense that travel time if spent traveling to a rental property activity at the very least can count towards the hours. I could attempt to be more aggressive and also count hours traveling from that completed business activity back to my home office whether or not additional business activities are accomplished once I arrive but I'll leave that out of my question here. Any help from a tax attorney lawyer or CPA or someone who has personally gone toe to toe on this matter with the IRS would be greatly appreciated. Looking for a solid defense concerning this. Thanks Everyone!!
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Accountant, Enrolled Agent · Grayslake, IL · Member since 2011 · 5k+ posts · 2k+ votes
9y

@Thomas Gagnon,

That is because most don't understand it.

See this reply in the discussion

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  • Linda WeygantPro Member
    Investor and CPA · Arvada, CO · Member since 2015 · 2k+ posts · 3k+ votes
    9y

    As usual, the answer to all of this is going to be "It Depends".  The IRS very rarely puts out specific guidance in an arena like this because it is an incredibly grey area.  The IRS will look at ALL facts and circumstances surrounding something like this.  It sounds like you know what to document, but I'll just outline it here for clarity.

    1.  Establish that your home office is your regular place of business.  PS - Don't be shy about taking this deduction if you legitimately qualify for it.  It is no longer the huge red flag for an audit that it used to be.

    2.  Contemporaneous documentation of miles and hours driven.  An app like MileIQ is good for this as it captures not only miles, but start and stop times.

    3.  Contemporaneous and accurate timekeeping for your other, non real-estate, endeavors.

    If you are pushing the limits on this - like you're desperately trying to get to hour 751 - and you're at 735 hours of "real work" and 16 hours of drive time, the IRS would be likely to allow that you're a real estate professional, providing everything else is in perfect shape and there are no other questionable or doubtful items, including your contemporaneous records.  

    But if you're at 500 "real work" and 251 drive time, that's probably pushing it and an agent may allow or disallow it depending on the quality of your other records.

    If you're at 1000 hours of other work, 975 hours of real estate work and 26 hours of driving, this may also go through, but again may depend on the quality of your recordkeeping in order to pass.  

    @Brandon Hall keeps his eye on the most current court cases and is a sponge when it comes to remembering the details of what helped a taxpayer and what sunk them.  Perhaps he's read of something recently that will help.

  • Accountant, Enrolled Agent · Grayslake, IL · Member since 2011 · 5k+ posts · 2k+ votes
    9y

    @Thomas Gagnon,

    There are other items you will want to account for. I doubt anyone has talked to you about Section 469 grouping and why it can be a detriment. If you want to sell a property at any point, you may not be able to deduct losses or release certain parts of it because that election was made at any point in time. This year you may qualify as a RE Pro; however, next year you might not. Those are things to take into account.

    @Linda Weygant covered most of the items.  Keep in mind rule number 1 is that you must perform more hours in RE than any other activity.

  • Investor · Beverly, MA · Member since 2016 · 56 posts · 24 votes
    9y

    Thanks for the answers.  As you can probably tell  I'm in the middle of an audit as we speak.  My records are impeccable, "at the risk jinxing myself", they are not being contested as of yet.  However, in the first response back from the IRS they stated in an email that they made it partially through my mileage and activity/time log and determined that the time spent driving to and from the property from my home/home office is not time that can be considered.  This is my first property and over the course of roughly a year and a half I was there almost every day fixing/managing the property into a shiny diamond.  I worked roughly 2000 hours in my consulting gig and another 2400 on real estate in 2015.  The total drive time not being allowed was not even disclosed to me.  The Auditor simply stated "I made it to August in your log and factoring in roughly an hour there and an hour back each time, you fail the 50% test".  No consideration was given to if I stopped in the middle to get supplies or tools or to meet with another party, though all were documented in great detail.  On a daily basis I would compile my logs using a combination of voice memos on my phone, EZpass, time stamps from store receipts and a device called mileage ace installed in my vehicle.  The auditors contention is that they are considering the time to and from as commuting.  I'm looking for additional experience from anyone that may have been through this before and a successful defense against considering this time as commuting?  P.S.  I know after speaking to many that the hours seem high, but no kids, no wife, just truck and tools and a tenacity for succeeding at this.  None of my times are estimates and are backed by the third party sources I noted.  Just a crazy weirdo trying to switch gigs......

    Thanks Everyone!!

    @brandon hall

    @amanda Han 

  • Investor · Beverly, MA · Member since 2016 · 56 posts · 24 votes
    9y

    @Steven Hamilton II

    Funny you mention the IRC 469 code, I recently discussed if any cons exist with electing to combine properties with my CPA because I purchased additional properties last year and their answer was, not really?!?  No mention of the cons you cited above, thanks for the info Steve!

  • Accountant, Enrolled Agent · Grayslake, IL · Member since 2011 · 5k+ posts · 2k+ votes
    9y

    @Thomas Gagnon,

    That is because most don't understand it.

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