=================================
My_question_is: Applicable to both US and
Canada
Subject: Filing tax on New
Rental Property Texas
Expert:
[email protected]Date:
Saturday January 19,
2008
Time: 05:23
PM -0000
QUESTION:
We are Canadians and acquired a residential
property in Texas in Dec 2007. We have a property manager and sent in
applications for ITINs.
Our intention is to rent the property out for a
number of years and then reside in it seasonally.
We will have to seek
representation for future tax filings but have a number of questions:
1.
Well we haven't rented out the property yet, we incurred expenses in 2007(legal,
renovations, interest, property management).
Can we carryforward these
expenses to filing in both juristictions in 2008 ?
2. We did two
trips in 2007 for searching for
properties in the location before we bought.
Are the costs associated with these trips, deductible in both Canada and US
filings?
3. Depreciation - our intention after renting out the property
for a number of years is to use it as a secondary residence. What are the
considerations concerning deducting depreciation with any future
disposition?
-----------------------------------------------------
david
ingram replies:
1. Any expenses for the purchase and
gettung ready for rent are NOT deductible agaisnt current income.
They
CAN be added to the principal and deducted in the future against any capital
gains when you sell it And be depreciatred int eh meantime.
As an
example:
You buy a unit for $194,000. and spend $2,000 legal
expenses and $4,000 travel (to buy) for a total of $200,000
The municipal
appraisal is for $150,000 and says the land is worth $75,000 and the
improvements (bldg) are worth $75,000
You would set up the opening
depreciation schedule in the US (schedule 4562) as Land $100,000 - Blding
$100,000 as a proration of the $200,000 you paid.
You would do the same
in the CCA spot on Canada's T776.
The Improvements and any carrying
costs would then be added tio the cost of the building.
So if you spent
$18,000 on improvements and another $2,000 in interest for December, you would
then add $20,000 to the cost of the bldg in both countries and the depreciation
schedule would show land $100,000, Building $120,000.
That presumes that
the property was not available to rent at the time because of the
remodelling.
2. After purchase, trips to Texas to
look at the property or deal with matters are not deductible even though
there are lines on the return for auto. Auto expense is to use your car,
etc for repairs or to carry your lawn mower and is not designed for you to drive
2,000 miles.
In addition, since you can NOT do any repairs or
improvements or even collect the rent for the Texas unit, there can NOT be a
claim for going to Teax for you to physically paint or clean.
But even if the
unit was in Nova Scotia where you can paint and clean, that travel expense is
not deductible although the CRA and IRS tend to overlook the claim if
made.
If you had bought it in September and the unit was available on Oct
1 amnd did not rent for Oct, Nov and December, than you would do as above with
expenses up tio day it was available and be able to deduct condo fees, taxes,
interest, utilities, advertising, long distance phone calls, management, etc on
US schedule E on form 1040NR (one of each of you if in joint tenancy) AND
scheule T776 in Canada.
3. Note that depreciation 'has
to be' claimed on schedules E and 4562 under US law even if it vcreates a
loss.
In Canada CCA (depreciation) can NOT be claimed unless it is used
to reduce a profit. CCA in Canada can NOT be used to increase or create a
loss for rental property wheter it is a jet engine, a motorhome, ski cabin in
Whistler or condo in Florida.
If and when you sell the property, both
countries tax the recapture of depreciation or CCA. So unless you tear the
old building down (no recaptuire) any tax you save in the interim has to be
repaid, in both countries. I prepared a Hawaii tax return today where the
depreciation claimed over the last 20 years resulted in a $32,000 tax bill
today.
In addition, under sections 45(4) of the CANADIAN Income Tax Act,
if you have depreciated the unit and then convert it to a personal unit in the
future, you must pay any capital gains tax and any recapture tax when you move
into it as your own. If you rent it out withOUT claiming Canadian
depreciation, section 45(3) allows you to delay paying any capital gains ta
xuntil the actual sale when you convert the rental unit to personal
use.
Because your property is in Texas, there is no state return
to prepare as there would be in Vermont, California, Arizona, and another
40 states.
-------------------
The following was given out at a recent
seminar for Ozzie Jurock's Real Estate Action Group (REAG) which you can find
out about at
www.jurock.com.
QUESTION: I am looking at buying property in the US.
What tax implications should I be looking at beforehand?
Also, can trips taken there to look at properties be claimed as an expense after I've bought? Can trips just to look be claimed against anything (what if I look in Vegas, Arizona, and Portland, but only end up buying in one or none).
------------------------------------------------
david ingram
replies:
I actually spoke to 113 people at Ozzie Jurock's Seminar at SFU
on Monday Night, Jan 7 2008.
The trips are not a writeoff against other
income. If you buy something they can be addded to the cost of the
property you did buy.
i.e., if you spejnt $5,000 on trips and paid
$200,000, the cost of the unit for future depreciation purposes would be
$205,000 less any land value.
It would also affect any future taxable
capital gains when you sold the property.
Remember if you do a piece of
real estate for investment, you can NOT do any work on it whatsoever. If
you do, you risk jail, fines and being banned from the US for 3, 5, 10 year or
even forever.
The following two pieces plus a sample US rental tax return
were handed out at the seminar.
ONE dealt with the working issue and what
forms to fill out.
David
Ingram's US/Canada Services
US/Canada/Mexico Tax Immigration &
working Visa Specialists
US / Canada Real Estate
Specialists
4466 Prospect Road
North Vancouver,
BC, CANADA, V7N 3L7
Calls accepted from 10 AM to 10 PM 7 days a
week
Res (604) 980-3578 Cell (604) 657-8451
Bus (604)
980-0321 Fax (604) 980-0325
[email protected]
www.centa.com www.david-ingram.com
Jan 6, 2008.
Rentals in the USA.
QUESTION that came to me from
ASK AN EXPERT at www.jurock.com
We just
purchased property in Spokane Washington( a 4 plex apartments)
We plan on
renting out 3 of the units and keeping one. I was told by the border
crossing inspector,
that I have to hire a rental agency in order to rent out
the apartments.
and I also have to have a property manger full
time..
We will be at our apartment approx 2 times a month..
So we do not
need a property manager.
Do you know if this true,, or please direct me to
the correct person that would be able to help me.
Thanks for your
time.
----------------------------------------------------------
david ingram
replies:
You need a property manager if you do not want the strong
possibility of going to jail for a few days before being deported and then not
allowed back in the USA. For a story about US Immigrations hell for a Holiday
Inn Manager, try
http://apostille.us/news/local_holiday_inn_express_manager_in_jail_on_immigration_charges;_husband_fights_for_her_return.shtml
or how about a married woman's
ordeal in Georgia for a traffic violation at
http://www.canada.com/ottawacitizen/news/story.html?id=f4f1d2fb-07ae-4560-8f6c-703acf8146fb&k=0
Crossing the
border when you have an ad running to show the premises and saying you are going
down to spend the weekend in your holiday home (i.e lying to the HOMELAND
Security official) could result in seizure of your vehicle and a ban for up to
10 years under their ER (Expedited Removal) process. In other words, it is
more serious to lie to the guard at the border than it is to do the
work.
You 'could' actually show the property for rent, but you can
NOT write out a contract for rent or collect a single rent cheque (check) or
cash for rent in the United States. There is nothing new about this. The
first time I ran into it was in 1972 or 1973.
If you are physically
there, you can NOT cut the grass, shovel the sidewalk, paint or decorate or
repair or fix or remodel or improve or take out the garbage for any part of the
rental property.
You can paint and clean your own unit if it is NEVER
rented or intended to be rented. You can not paint and clean up getting the
property ready for rent so DO NOT make the mistake of thinking you can live in
one, clean it up and remodel it and then rent it out and do the same for another
one and then another one and another one. If you do this and one of your tenants
(who maybe doesn't like you because you evicted them or told them to turn their
strereo down when you happen to be in town or for any other reason) read my
website, (or the uscis website) he or she would find out that you can NOT do
this stuff and could phone the Homeland Security office or write an anonymous
letter and you could be arrested in November 2008 for something you did in
December 2007.
This may seem unreal, but in US terms, working
without a visa is just as serious in law as the spontaneous robbing of a
convenience store and the penalties can be worse. Think of those nightly
news shows with 28 illegal Mexican or Guatamelan citizens being stuffed into
Paddy wagons on the Arizona border. This is not a racist comment but with the
Mexican illegal immigrants, bing rounded up and shipped back across the border
is a way of life with no social stigma. For a nice clean living Canadian,
being thown into an immigration detention cell for taking money for rent is a
devestating experience. In one case, a mother and her son were thrown into jail
for 5 days in Phoenix when she went to Phoenix from White Rock BC. Her
husband owned 18 units and HAD a property manager. Unfortunately, he also
died in the arms of that female property manager and his widow then fired the
property manager and she and her 20 year old son went to Phoenix to collect the
rent and hire another property manager.
The property manager (who knew
the law as everyone in Arizona does) phoned Homeland Security who showed up and
arrested mother and son and threw them into the notorious Phoenix Immigration
hell with some 300 other illegals. To rub salt into the widow's wounds, the
property manager ended up with the property because she was a second mortgage
holder on the property and the property fell into default because of the widow's
cash flow troubles, largely because she could not go to Phoenix to hire another
property manager.
For instance, for 'you', this kind of arrest
could result in imprisonment for a usual five days in a US immigration jail
until you posted $5,000 bail each and then being banished from the US for five
to ten years.
It does not stop there. This type of
conviction would stop you getting on an airplane which stopped in the USA on the
way to Mexico. AND, under new US laws that have been proposed but
not yet actually put in place, the arrest and banning would stop your Nov 6 trip
to Cancun because people in this position will not even be allowed on commercial
airliners that are flying over any part of the US. To get to Cancun, you would
have to fly from Calgary or Vancouver to London England and then back to Mexico
City and 'then' to Cancun and reverse it to get home.
This may be
overkill but 'You' are / were lucky that the inspector gave you the correct
advice BEFORE you put your foot in it.
By the way, for income tax You
ALSO HAVE TO FILE A 1040NR US TAX RETURN WITH A SCHEDULE E AND A SCHEDULE
4562 EACH. Then the same income gets put on Schedule T776 of your
Canadian return. If you have paid tax to the US, you will claim it as a
credit on Canadian forms T2209 and T2036.
David
Ingram's US/Canada Services
US/Canada/Mexico Tax Immigration &
working Visa Specialists
US / Canada Real Estate
Specialists
4466 Prospect Road
North Vancouver,
BC, CANADA, V7N 3L7
Calls accepted from 10 AM to 10 PM 7 days a
week
Res (604) 980-3578 Cell (604) 657-8451
Bus (604)
980-0321 Fax (604) 980-0325
[email protected]
www.centa.com www.david-ingram.com
-------------------------
The
second dealt with making your personal mortgage interest in Canada deductible
and the Overs, Evans, Lipson and Singleton tax cases and
GAAR
David
Ingram's US/Canada Services
Mortgage Interest as a Deduction in 2008 – dealing with
GAAR
I first conceived of this method in 1975/76 when a client of
mine had a rental duplex and had a tenant who was injured in a car
accident. It was at the time of the changeover from private
insurance to ICBC and the injured single mother tenant was waiting for an
insurance settlement.
My client allowed his tenant to stay in the half duplex for
more than a year and to stay afloat him self, he borrowed money to pay the
duplex bills. When doing his 1975 tax return, we deducted the interest paid on
the loan because the purpose of the loan was clearly to fund the rental
duplex.
When he finally got his cheque for more than $5,000 from the
tenant, it would have been all over if he had just paid the loan off and we had
not thought about it. But my client, bless his soul, phoned and asked if he had
to pay off the loan (which was deductible) or could he use the money for another
non-deductible purpose.
My answer, after thinking about it for a day or so, was that
he could us e the $5,000+ for any purpose he could think of.
At the same time, I said this, I was also writing something for the North
Shore Credit Union and put my ‘new’ method of making the mortgage interest
deductible in this report which they then published as part of an advertisement
in the North shore News in (I think) November, 1976.
I expanded it and it was next published by Hancock House
Publishers in my Investment Guide in 1979, 1980 and 1985 and 1991 and BC
Business magazine in 1979. Sometime in there, the Ontario Dental Association
also ran it in their magazine. It then became part of the internet and can be
found in the March 1997 and November 2001 newsletters.
I was pretty heavily involved in the Federal
Conservative Party (ran for the North Shore Nomination in 19780 and am
proud to say that we got mortgage interest as a tax deduction on the 1979
federal Income tax return.
Unfortunately, Joe Clark, the Prime Minister at
the time, did not count the number of yes votes and lost a non-confidence motion
on Dec 12, 1979, and on Feb 18, 1980, Pierre Trudeau was re-elected as Prime
Minister and even though there was a 4-page form and a line on the T-1 General
that year, the deduction was killed retroactively by the liberal government and
we no longer had this benefit for all without manipulating the paperwork.
In 1981, Fred Snyder was running a series of
seminars and teaching my method to a lot of different groups.
In one seminar, he taught it to Realtors, McCauley, Nicolls, Maitland and
Company and the manager Fraser Smith wrote Fred a letter thanking
him for explaining the methods. In 1985, Fraser Smith than
published the SMITH MANOUVRE which explains the method in great detail and at
the time, VANCITY Savings Credit Union was featured in the book and was very
good at setting up the method.
Then on Oct 27, 1988 John Singleton had approximately
$300,000 in his lawyer’s capital account. He got permission
to take the $300,000 out (it was his but was being used as security in his law
practice). He used it to buy a house and then used the house
as security to borrow $300,000 which he then put into his capital account; this
was all done in one day. Of course, since the money in the
account was now borrowed for business purposes, he deducted the interest on his
1988 and 1989 returns and the Tax Department turned him down.
He appealed and lost in the Tax Court of Canada but won in the Federal
court of Appeals. The CRA appealed to the Supreme Court and
in October 2001, the Supreme Court of Canada found in favour of John Singleton
in a 5 to 2 decision.
This case has now been quoted and cited in many other
cases. In OVERS 2006 TCC 26, Mr Overs paid back a shareholder-loan, which
would have been included in his income. By doing what he did,
co-incidentally, the interest expense was made deductible.
Mrs Overs borrowed funds
to purchase shares of his holding company at their fair market
value. However, Mr Overs did NOT use a 73(1) rollover as
Lipson did. Therefore, no capital gain was realized but the
attribution rules in section 74(1) worked to transfer the interest expense on
the wife’s borrowed funds -- back to him.
Judge Little turned down
the CRA’s claim that tax benefits arose from this series of transactions.
The taxpayer followed the Income Tax Act in repaying
his loan and transferring the shares to his wife. Justice Little ruled that the
transactions were NOT avoidance transactions and therefore GAAR did not apply.
Judge Little ruled that none of the transactions could be considered “abusive
tax avoidance”.
And Judge Bowman ruled in favour of Evans (2005 TCC
684). Judge Bowman found there were no avoidance transactions
in what could only be described as a super complicated and very sophisticated
series of business restructurings that ended up with a former shareholder
receiving cash by using specific rules in the Act, including
sections 85
(rollovers), 110.6
(capital gains exemption), 112 (tax free inter-corporate dividends), 74.5
(attribution) and ss. 84(3) (deemed dividends).
Judge Bowman assumed
that there ‘were’ avoidance transactions. He then dealt with
them on an individual basis to decide whether the avoidance transactions were
‘abusive’. His final decision was that provisions of the
Income Tax Act operated as intended and there could not be any
abuse.
However, he was not of
the same opinion with the LIPSON Family who lost in Lipson v. The Queen, 2006 TCC 148
Mr Lipson owned a profitable
business and:
- The Lipsons contracted to
buy a home in Forest Hills in Toronto
- Mrs Lipson took out a demand
loan to buy share in the family business from her husband.
- The shares were transferred
to Mrs Lipson as a section 73(1) rollover
- Mr Lipson used the funds to
buy the house
- They “both” took out a
mortgage on the house to repay the demand loan
Judge Bowman used the Section 245 GAAR
provisions to rule that the Lipson family was guilty of Gross Abuse of the Tax
system. Perhaps, if they had a business reason for the loan
or had not used the Section 73(1) tax free rollover, he would have found in
their favour as he did with the EVANS 2005 DTC 1762 case. In
the LIPSON case the wife’s borrowing did not put income in her hands and it was
unclear who had paid the interest.
--------------------------------------------------------------------------------
On December 25, 2007, David Ingram
wrote:
It is very unlikely that blind or unexpected email to me
will be answered. I receive anywhere from 100 to 700 unsolicited
emails a day and usually answer anywhere from 2 to 20 if they are not from
existing clients. Existing clients are advised to put their 'name and PAYING CUSTOMER' in the subject line and get
answered first. I also refuse to be a slave to email and do not look at it
every day and have never ever looked at it when I am out of town.
e bankruptcy expert US
Canada Canadian American Mexican Income Tax service and
help
However, I regularly search for the
words"PAYING CUSTOMER" and always answer them first if they did not get spammed
out. For the last two weeks, I have just found out that my own email notes to
myself have been spammed out and as an example, as I write this on Dec 25, 2007
since June 16th, my 'spammed out' box has 47,941 unread messages, my deleted box
has 16645 I have actually looked at and deleted and I have actually answered
1234 email questions for clients and strangers without sending a bill. I
have also put aside 847 messages that I am maybe going to try and answer because
they look interesting. -e
bankruptcy expert US Canada Canadian American Mexican Income Tax
service and help
Therefore, if an email is not answered in 24 to 36 hours,
it is likely lost in space. You can try and
resend it but if important AND YOU TRULY WANT OR NEED AN ANSWER from 'me', you
will have to phone to make an appointment. Gillian Bryan generally accepts
appointment requests for me between 10:30 AM and 4:00 PM Monday to Friday
VANCOUVER (Seattle, Portland, Los Angeles) time at (604) 980-0321.
david ingram
expert US Canada Canadian American Mexican Income Tax
service and help.
david ingram's US / Canada Services
US / Canada
/ Mexico tax, Immigration and working Visa Specialists
US / Canada Real
Estate Specialists
My Home office is at:
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3L7
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(604)
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to be regarded only as general comment. Nothing in this message is
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are expressly denied. All readers should obtain formal advice from a
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Cross border, dual citizen - out of country investments are all handled
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This is not intended to be definitive but in general I am
quoting $900 to $2,900 for a dual country tax
return.
$900 would be one T4 slip one W2 slip one or two interest
slips and you lived in one country only (but were filing both countries) - no
self employment or rentals or capital gains - you did not move into or out of
the country in this year.
$1,100 would be the same with one rental
$1,300 would be the same with one business no
rental
$1,300 would be the minimum with a move in or out of the
country. These are complicated because of the back and forth foreign tax
credits. - The IRS says a foreign tax credit takes 1 hour and 53
minutes.
$1,600 would be the minimum with a rental or two in the
country you do not live in or a rental and a business and foreign tax
credits no move in or out
$1,700 would be for two people with income from two
countries
$2,900 would be all of the above and you moved in and out of
the country.
This is just a guideline for US / Canadian
returns
We will still prepare Canadian only (lives in Canada, no
US connection period) with two or three slips and no capital gains, etc.
for $200.00 up.
With a Rental for $400, two or three rentals for $550 to $700
(i.e. $150 per rental) First year Rental - plus
$250.
A Business for $400 - Rental and business likely $550 to
$700
And an American only (lives in the US with no Canadian income
or filing period) with about the same things in the same range with a little bit
more if there is a state return.
Moving in or out of the country or part year earnings in the
US will ALWAYS be $900 and up.
TDF 90-22.1 forms are $50 for the first and $25.00
each after that when part of a tax return.
8891 forms are generally $50.00 to $100.00
each.
18 RRSPs would be $900.00 - (maybe amalgamate a
couple)
Capital gains *sales) are likely $50.00 for the first
and $20.00 each after that.
Catch - up returns for the US where we use the Canadian return as
a guide for seven years at a time will be $150 to $500.00 per year depending
upon numbers of bank accounts, RRSP's, existence of rental houses, self
employment, etc.
Just a guideline not etched in
stone.
This from "ask an income trusts tax service and immigration expert" from
www.centa.com or www.jurock.com or www.featureweb.com. David Ingram deals on a daily
basis with expatriate tax returns with multi jurisdictional cross and
trans border expatriate problems for the United States, Canada, Mexico,
Great Britain, United Kingdom, Kuwait, Dubai, Saudi Arabia, Thailand,
Indonesia, Japan, China, New Zealand, France, Germany, Spain, Italy, Russia,
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