Report as Passive or Non-Passive Income?

Craig W. Smalley, EA
Founder/CEO
CWSEAPA PLLC
Columnist
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I have a client that owns three rental properties, has a full-time job as a physician and did some side work before her second kid was born. 

When I did her recent tax return she had $45,000 in passive losses from the rentals and $35,000 in income from her S-Corporation. I called her and found out how many hours she had only worked for three months in her S-Corp, which was less than 500/750 hours per year.  I changed the nature of the income from the S-Corporation to passive, thereby eating up the passive losses from the rental. 

The reality of the situation is that this client doesn’t use a property management company on the rentals. I felt it was stretch to say she was a real estate professional, because she is a physician.  However, before she got her job with the clinic, she did some side work at a hospital for a few months, but never met the limits of material or active participation.  

Let’s take another example.  I am involved in many businesses, however the job that I spend all my time with is CWSEAPA (my main company).  The other businesses are passive income or loss.  Why?  From experience, the IRS will buy that you have one full time job that you spend all your time working at.  The rest would be passive.

Another example is the Uber or Lyft Driver. Most of the drivers have other jobs, and spend less than 15 hours a week on driving.  The income is usually passive.  As are most of the side jobs that people do to supplement their income.

Explaining to a client that their rental income or loss is passive is no easy feat.  For example, most of my clients don’t meet the adjusted gross income (AGI) requirements to take the $25,000 deduction allowed for rentals.  However, they can take those passive losses when the property is sold. 

I don’t know if you have ever had to explain to a client the theory behind rentals.  The cash flow is good, and more than likely will pay the bills.  Where the losses come in, is usually depreciation. Where you make your money is when you sell the property.

In the Tax Court Case of  Stephen P. Hardy, et ux. v. Commissioner, TC Memo 2017-16.  Dr. Stephen P. Hardy is a plastic surgeon who has specialized in pediatric reconstructive surgery since the early nineties. He conducted his medical practice through Northwest Plastic Surgery Associates, which is a single member PLLC. Mrs. Hardy is the chief operating officer. Previously, Dr. Hardy performed operations either at his office or at two local hospitals.

If the surgery required local anesthesia he performed the operation at his office, but if it required general anesthesia or an overnight stay, he would have to perform the operation at one of the hospitals. The problem with this situation was that the availability of the operating rooms at the hospitals was limited.

Hardy struggled to find space at the hospitals to conduct his procedures. Due to this difficulty, Hardy considered opening his own surgery center. He purchased land and developed plans to build this surgery center; however, before construction started, MBJ representatives approached Hardy to ask him about becoming a member. Mr. Hardy concluded that becoming a member/manager of an established surgery center was a better business decision than building his own surgery center due to the cost of construction, staffing, certifying, and operating the center.

MBJ is an LLC formed by a group of practicing physicians in 2004 for the purpose of operating a surgery center. For income tax purposes, it is treated as an LLC, and it hires its own employees. It bills patients directly for facility fees and then distributes each members' share to him or her based on his or her share of the earnings, which is the facility fees less expenses. It uses a third-party accounting firm to prepare the Schedule K-1, Partner's Share of Current Year Income, Deductions, Credits, and Other Items, and all other accounting matters for the members. MBJ does not pay members/managers for the procedures they perform.

Doctors receive pay from their own partnership distributions. One advantage of MBJ for the Hardy’s was that MBJ is equipped for procedures that require general and local anesthesia; but overly complex procedures that require an overnight stay still had to be performed at a hospital.

In 2006, Dr. Hardy purchased a 12.5% interest membership in MBJ for $163,974. During the year following this purchase, the Hardy’s decided to build an office for Northwest Plastic Surgery next to MBJ. Dr. Hardy had no day-to-day responsibilities at MBJ, never managed it, and did not have any input about management decisions. He primarily performed surgeries on MBJ's patients on Mondays, and he did not pay rent to perform surgeries at MBJ. He received a distribution from MBJ regardless of whether he performed any surgeries at MBJ, and this distribution was not dependent on how many surgeries he performed. Physicians cannot refer their patients to the surgery center when they hold a financial interest. However, the patients often choose the surgery center because it was cheaper.

The Hardy’s used a partner and tax director at an accounting firm with more than 40 years of experience to prepare and file their tax returns. In 2006 and 2007, the Hardy’s reported their income from MBJ as non-passive based on the CPA's professional judgment. They claimed a total disallowed loss and he determined that the income was non-passive based on MBJ's Schedule K-1 that it distributed to Hardy.

The K-1 stated that the income was from a trade or business and included self-employment tax. Dr. Hardy's ownership interest in MBJ was not grouped with his medical practice activity, and the grouping regulations were not considered. In 2008, their CPA determined that the income from MBJ was passive and started to report it accordingly. He determined this because he learned that Dr. Hardy was not involved in any management of MBJ and was not liable for the debts of the company. He did not amend the 2006 and 2007 returns because he believed the difference was immaterial. In 2008 through 2010 the Hardy’s reported the MBJ income as passive and claimed an allowed loss.

The IRS issued a notice of deficiency for tax years 2008 through 2010. They disallowed the passive activity loss and tacked on a Section 6662(a) accuracy-related penalty. Hardy appealed for redetermination in a timely manner. He challenged the IRS's determination that he could not claim passive activity loss deductions against the income from MBJ and the accuracy-related penalties.

The Tax Court had to decide whether the Hardy’s properly reported Dr. Hardy's income from MBJ as passive, and if so, whether they could deduct a passive activity loss carryover from previous years. It also had to determine whether the Hardy’s overpaid their self-employment tax. Finally, it had to decide if they were liable for the accuracy-related penalties.

Typically, in IRC §§ 162  212. The IRS then may determine whether the activity is passive under Section 469 and disallow the deduction subject to certain exceptions. This case is different than most because the Hardy’s reported income as passive for 2008 through 2010 and claimed a passive activity loss carryover from the previous years. The IRS then determined that the activity was non-passive. IRC 469 disallows a deduction for any passive activity loss subject to a few exceptions.

Passive activity loss is defined as “the excess of the aggregate losses from all passive activities for the taxable year over the aggregate income from all passive activities for that year.” A passive activity is any trade or business where the taxpayer does not materially participate. The taxpayer would materially participate in an activity if “they are involved in the operations of the activity on a regular, continuous, and substantial basis “Dr. Hardy's activity does not meet the material participation test.

In short, you have to have documented proof of an activity being active or passive.

About Craig W. Smalley, EA

Craig Smalley

Craig W. Smalley, MST, EA, has been in practice since 1994. He has been admitted to practice before the IRS as an enrolled agent and has a master's in taxation. He is well-versed in US tax law and US Tax Court cases. He specializes in taxation, entity structuring and restructuring, corporations, partnerships, and individual taxation, as well as representation before the IRS regarding negotiations, audits, and appeals. In his many years of practice, he has been exposed to a variety of businesses and has an excellent knowledge of most industries. He is the CEO and co-founder of CWSEAPA PLLC and Tax Crisis Center LLC; both business have locations in Florida, Delaware, and Nevada. Craig is the current Google small business accounting advisor for the Google Small Business Community. He is a contributor to AccountingWEB and Accounting Today, and has had 12 books published on various topics in taxation. His articles have also been featured in the Chicago Tribune, New York Times, Yahoo Finance, Nasdaq, and several other newspapers, periodicals, and magazines. He has been interviewed and been a featured guest on many radio shows and podcasts. Finally, he is the co-host of Tax Avoidance is Legal, which is a nationally broadcast weekly Internet radio show.

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By bltaxes
Jun 4th 2018 18:54

Thank you and TCM 2017-16 was a fun read as the taxpayer and IRS arguments were reversed. We all need to be aware of the grouping rules when working with HNW clients with complicated portfolios of passive activities.

Also scary was how the taxpayers destroyed their chance at an equitable recoupment argument.... We all need to remember this and make sure the tax attorney throws it into the pleading......

Thanks (1)