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- Your gain is the sale price less your adjusted basis, and adjusted basis is what you paid, plus improvements and the expense of sale, less every dollar of depreciation allowed or allowable.
- The part of the gain that came from depreciation is unrecaptured section 1250 gain, and the federal rate on it tops out at 25 percent.
- On a building held longer than a year, the rest of the gain falls under the long-term rates of 0, 15 or 20 percent, and the 3.8 percent net investment income tax can apply on top.
- California taxes the whole gain as ordinary income, with no lower rate for long-term gains.
- An installment sale spreads the gain across the years you are paid, and a 1031 exchange defers it.
On the made-up sale worked out below, a building bought for $1,100,000 and sold for $3,000,000 produces a taxable gain of $2,000,000, and $520,000 of that is depreciation the IRS can tax at up to 25 percent. The other $1,480,000 is taxed at the long-term rates of 0, 15 or 20 percent, the 3.8 percent net investment income tax can land on top, and California taxes all $2,000,000 as ordinary income.
Those rules are the same for a fourplex in Palms and a 40-unit building in Long Beach. What differs is your purchase price, your improvements and your depreciation, so the records behind those three numbers decide the result.
How is the gain on an apartment building figured?
A sale of depreciable business property is reported on IRS Form 4797, and the Form 4797 instructions build the gain from three figures: the gross sales price, the cost or other basis plus the expense of sale, and the depreciation allowed or allowable. Subtract the depreciation from the second figure and you have the adjusted basis. Subtract the adjusted basis from the sales price and what is left is the gain.
Cost starts with what you paid, which your purchase closing statement shows. IRS Topic 703 then has you add the cost of improvements that add to the property's value and subtract depreciation. Note the word the form uses. Depreciation "allowed or allowable" means a year in which you skipped the deduction still comes off your basis.
Only the building was ever on the schedule. Land is never depreciable, according to IRS Publication 527, and a residential rental building is depreciated straight-line over 27.5 years. An owner who bought in 1998 has written off all of the original building by now, and what is left in the basis is mostly land and later improvements.
A worked example, with made-up numbers
Every figure below is invented, and the example assumes a building held for many years, all of the depreciation taken on the building itself, and no section 1231 losses in the previous five years.
| Line | Amount |
|---|---|
| Sale price | $3,000,000 |
| What you paid for the land and building | $1,100,000 |
| Improvements over the years | $300,000 |
| Expense of sale | $120,000 |
| Cost or other basis plus expense of sale | $1,520,000 |
| Depreciation allowed or allowable | $520,000 |
| Adjusted basis, $1,520,000 less $520,000 | $1,000,000 |
| Total gain, $3,000,000 less $1,000,000 | $2,000,000 |
| Part of the gain that came from depreciation | $520,000 |
| The rest of the gain | $1,480,000 |
Measure the profit the way an owner would, the price less everything put in, and you get $1,480,000: $3,000,000 less the $1,100,000 purchase, the $300,000 of improvements and the $120,000 it cost to sell. The taxable gain is $2,000,000. The $520,000 between those two numbers is the depreciation you deducted against the rents over the years, now counted back into the gain.
Your own version of this table needs the closing statement from your purchase, a list of improvements with dates and costs, and the depreciation schedules from your returns. Shaya can hand your CPA a realistic price and closing date to work with. The tax figure itself belongs to the CPA, because Shaya is a real estate agent and not a tax advisor.
Which federal rates apply to each part?
IRS Publication 544 treats a sale of real property used in a trade or business and held longer than one year as a section 1231 transaction, so the full $2,000,000 starts there, netted with any other section 1231 gains and losses you have that year. A net gain is ordinary income up to any section 1231 losses from the previous five years that have not been recaptured. Whatever remains is long-term capital gain.
Inside that long-term gain, the $520,000 that came from depreciation is unrecaptured section 1250 gain, and IRS Topic 409 caps its rate at 25 percent. The remaining $1,480,000 takes the long-term rates of 0, 15 or 20 percent, depending on your taxable income. Topic 409 lists where the income lines between those rates fall for a stated tax year, so check it against the year you close. Sell a building you have held one year or less and none of this applies, because a short-term gain is taxed as ordinary income.
Part III of Form 4797 also figures depreciation that has to be recaptured as ordinary income on certain property. Whether any of yours falls there depends on what you depreciated and how.
When does the 3.8 percent tax apply?
Section 1411 of the Internal Revenue Code adds a 3.8 percent tax on net investment income for individuals, estates and trusts with income above set thresholds. For an individual, according to the IRS questions and answers on the tax, the threshold is modified adjusted gross income of $200,000 filing single or $250,000 filing jointly. Capital gains and rental income are both on the IRS list of what net investment income includes.
Those thresholds are not indexed for inflation. They are the same dollar figures that applied when the tax took effect on January 1, 2013, which means a sale year can carry an owner over them for the first time, since a gain like the one in the example lands in a single year's income. The tax is figured on Form 8960.
How does California tax the gain?
California has no separate rate for capital gains. The Franchise Tax Board taxes long-term and short-term gains as regular income, so the full $2,000,000 in the example is added to the year's other income and taxed at the same rates. There is no 25 percent tier and no 0 percent tier.
Part of the state's share leaves at closing. Escrow sends the Franchise Tax Board 3 1/3 percent of the total sales price unless an exemption applies or you elect the alternative calculation on Form 593, and that withholding is a prepayment credited against the tax on your California return.
Can you spread the tax out or put it off?
Carrying a note for the buyer spreads it. When part of the price is paid in later years, the installment method in IRS Topic 705 lets you include in each year's income only the part of the gain you receive that year, reported on Form 6252. Any gain the depreciation recapture rules make ordinary income is still reported in the year of the sale, payment or no payment, and Publication 537 puts only the gain above that amount on the installment method. The note is also a loan to your buyer, and it is worth exactly what the buyer pays on it.
A 1031 exchange puts the tax off instead. Buy other real property to hold for business or investment, meet the deadlines, and keep the money out of your hands, and the gain is deferred rather than taxed in the year you sell. The exchange starts with 45 days to identify the replacement, and the 1031 exchange rules for an LA building decide whether the deferral holds.