The Self-Rental Trap: Losses are Passive, Income is Nonpassive

The Self-Rental Trap: Losses are Passive, Income is Nonpassive

Dominick AustriaBusiness Member
Accountant · Las Vegas · Member since 2019 · 51 posts · 21 votes

Congratulations! Your operating business (medical, attorney, cpa, construction, etc) has been growing and you're looking at the next step. It's likely buying a commercial property to use as your office.

Under IRS rules if you rent your commercial real estate to your operating business it's classified as a self-rental. As a self-rental any losses are considered passive and any income is considered nonpassive. This is the self-rental trap. That cost segregation you did on the commercial real estate? Useless until you sell. Unless you have other passive income you will not be able to use the passive losses.

So then how businesses get the benefit of buying commercial real estate. It's through a grouping election. You tell the IRS that you are treating the commercial real estate and your operating business as one economic unit. Now your losses from the CRE can offset your operating business income. That's a win! However, there are certain limitations to grouping.

  • Rental is insubstantial in relation to the operating business; OR

  • Operating business is insubstantial to the rental; OR

  • Same proportionate ownership: each owner of the operating business has the same proportionate ownership in the rental activity

Notice only one of these requirements must be met. The last option is usually the easiest and most direct route.

One last important thing: you have to make this election in the first year you have both properties. There may be late election relief. It's important you work with professionals who know which elections to make and when. Tax preparation and planning is more than putting numbers in a software or spreadsheet..

Disclaimer: This post is for general informational and educational purposes only and is not intended to provide tax, legal, or accounting advice. Tax consequences depend on your specific facts and circumstances. Consult with your own qualified tax and legal professionals before taking action.

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Henry ClarkPro Member
Developer · Member since 2020 · 4k+ posts · 4k+ votes
1w

OP. Please put $100 on red for me. Your tag line says Las Vegas.

Since Land can't be depreciated and the Building has a long depreciable life.

Can they jack up the Rental rate for the building and reduce the "Practices" personal income? Reducing both their practice income and possibly their tax rate.

On the building ownership side since this is passive, hopefully the Wife is a stay at home mom. Can they do a joint return to reduce the overall tax impact, plus on top of that do the Cost Seg on the Building entity side? Basically, taking a faster bite out of the Building and the Land cost.

Let me know if I win and I will send the $100.

Thanks.

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  • Henry ClarkPro Member
    Developer · Member since 2020 · 4k+ posts · 4k+ votes
    1w

    OP. Please put $100 on red for me. Your tag line says Las Vegas.

    Since Land can't be depreciated and the Building has a long depreciable life.

    Can they jack up the Rental rate for the building and reduce the "Practices" personal income? Reducing both their practice income and possibly their tax rate.

    On the building ownership side since this is passive, hopefully the Wife is a stay at home mom. Can they do a joint return to reduce the overall tax impact, plus on top of that do the Cost Seg on the Building entity side? Basically, taking a faster bite out of the Building and the Land cost.

    Let me know if I win and I will send the $100.

    Thanks.

    • Dominick AustriaBusiness Member
      OP
      Accountant · Las Vegas · Member since 2019 · 51 posts · 21 votes
      1w

      Come out to Vegas and we'll put $100 on red together.

      Just like all IRS rules the rent has to be fair market value. Lower than FMV, red flag. Jacking up the rental rates, red flag. Also, you're just transferring money from one pocket to the other. It doesn't really have any benefit to do anything other than FMV. If you're plan to sell the CRE or the business you'll want to make sure the rent is FMV to provide trustworthy financials to buyers. Fun fact, I see most clients paying below FMV rather than above FMV.

      Sure, the wife can be REPS but REPS doesn't make the rental automatically nonpassive. You/she still need to materially participate in the rental and likely still need to file a grouping election. Plus if you file a REPS election any prior year suspended losses are still.... suspended. If you have a change in facts in circumstances you can make a grouping election.

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  • Divin KanyamaBusiness Member
    Accountant · Seattle, WA · Member since 2025 · 403 posts · 166 votes
    1w

    @Dominick Austria Great explanation of an issue that is easy to miss until after the property is purchased. Grouping can be a powerful strategy when the ownership, participation, and other requirements are met. I would only add that cost-segregation losses are not necessarily “useless” without it—they may be suspended and used later against passive income or upon a qualifying disposition. Either way, this is why the structure and elections should be reviewed before closing, not after the return is prepared.

    • Dominick AustriaBusiness Member
      OP
      Accountant · Las Vegas · Member since 2019 · 51 posts · 21 votes
      1w

      A guy can't have a little dramatic effect in his post, now? You are right it's not useless. But they definitely didn't do a cost seg to wait 15 years to utilize the losses! Thanks for keeping me in check.

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  • Denise SuppleeBusiness Member
    Realtor · Willow Grove, PA · Member since 2017 · 991 posts · 646 votes
    1w

    This is something you really want to think about before you buy the property, not after. Buying the building for your business can make a lot of sense, but there are tax and legal issues that come with it.

    I'd have your CPA and attorney look at the structure before you close. It's much easier to set things up correctly from the beginning than try to fix them later.

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  • G. Brian DavisPro Member
    Investor · Hatboro, PA · Member since 2016 · 3k+ posts · 867 votes
    1w

    This is one of those things I’d want to talk through with my CPA before buying the property, not after. If you’re buying a building for your own business, there can be some real tax advantages, but the way you structure it matters.

    I’ve always thought it’s better to spend a little money getting the structure right upfront than spend a lot more trying to fix it later.

    The real estate and the operating business can work really well together, but I’d want the CPA and attorney involved before closing so there aren’t any surprises later.

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