We wanted to begin by discussing the 27.5-year depreciation for long term residential real estate. This may seem pretty self-explanatory. MACRS depreciation requires that “Non-Residential” Property be depreciated over 39-years while “Residential” gets 27.5 years. However, we often see taxpayers splitting buildings into residential and non-residential portions. This is the incorrect way for a taxpayer to handle.
Under Sec. 168(e)(2) residential rental property is a structure with 80% or more of the gross rental income coming from long term residential rental. This is calculated over the entire building, not portions of it. This means that if a building derives 10% of the income from retail space, that space is still depreciated over 27.5 years. Conversely, if a property is mixed use and derives 50% of the income from office space and 50% from residential the entire building is non-residential.
Now that then brings up the question as to when a property is residential rental and when it is “transient”. 168(e)(2)(A)(ii)(I) states that hotels and motels do not qualify if more than ½ of the units are used on a transient basis. But what qualifies as transient for this definition. Under 1.167(k) of the Regs, the IRS defines transient as a unit which “for more than one-half of the days in which the unit is occupied on a rental basis during the taxpayers taxable year, it is occupied by a tenant or series of tenants each of whom occupies the unit for less than 30 days.”
This definition will become even more important in the coming years if Congress fixes the issues surrounding Qualified Improvement Property (“QIP”). Under the Tax Cuts and Jobs Act of 2017 QIP was supposed to be bonus eligible, however, due to an error, it was left out of the final bill. If this becomes law the defining line between residential and non-residential becomes even more important as residential is not eligible for QIP treatment.
We look forward to delving into these topics in greater detail in the months to come. As with any of these areas please contact your McGuire Sponsel representative if you have any questions.