At-Risk Rules Can Limit Tax Deductions
The at-risk limitations are the result of Congress’ concern that taxpayers were deducting losses from tax-sheltering activities far in excess of their economic amount at risk in the activities. The thrust of the rules is that you can deduct losses only to the extent you bear a real economic risk of loss.
Amounts considered at risk
You are considered at risk for:
- The money and adjusted basis of property you contribute to an activity
- Amounts you borrow for use in the activity, if you’re personally liable for repayment, or property you pledge (other than property used in the activity) as security for amounts borrowed
For example, if you borrow money to buy rental property, you’re considered at risk if you’re personally liable for repayment of that loan. You’re also at risk if amounts borrowed are secured by property (i.e., pledged property) other than property used in the activity. In this case, the amount considered at risk is the net fair market value of your interest in the pledged property. However, no property is considered as security if it’s directly or indirectly financed by debt that’s secured by property you contributed to the activity.
Since the IRS often scrutinizes real estate loss deductions, it’s important to have a professional appraiser document the fair market value of property involved in these transactions.
Further, even if (1) you’re personally liable for the repayment of an amount you have borrowed or (2) you secure a borrowed amount with property other than property used in the activity, you aren’t considered at risk if you borrowed the money from a person having an interest in the activity or from someone related to a person (other than you) having an interest in the activity.
Amounts not considered at risk
You aren’t considered at risk for amounts protected against loss through nonrecourse financing, guarantees, stop-loss agreements or other similar arrangements. Nonrecourse financing is financing for which you aren’t personally liable. If you borrow money to contribute to an activity and the lender’s only recourse is to take your interest in the activity or the property used in the activity, the loan is a nonrecourse loan.
Additionally, any capital you have contributed to an activity isn’t at risk if you’re protected against economic loss by an agreement or arrangement for compensation or reimbursement.
Example: George and Ann own a building, which they rent to a group of dentists. The rental income is used to pay the mortgage on the building. George is personally liable for the mortgage; however, he separately obtained insurance to compensate him for any payments he must actually make because of his personal liability. George is considered at risk only to the extent of the uninsured portion of the personal liability to which he is exposed. He can include in the amount he has at risk the amount of any premium that he paid from his personal assets for the insurance.
Reductions of amounts at risk
The amount you have at risk in any activity is reduced by losses allowed in previous years under the at-risk rules. It may also be reduced because of certain distributions received. If the amount you have at risk is reduced below zero, your previously allowed losses are subject to recapture, thus resulting in income to you.
As you can see, calculating the amount you have at risk for an activity, which in turn affects the amount you can deduct on your tax return, is complicated. It’s best to engage tax professionals to help document your at-risk amounts in case of a future IRS audit.
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