All Forum Posts by: AJ Wong

Buckle up. This is a long post addressing many myths around the current obsession with the "STR loophole." And the first of such myths is that it is a loophole. No, it is not. Loopholes are something UNintended. In contrast, STRs work this way intentionally, by design.

STR means short-term rentals, by the way. Not something sexually transmitted.

Disclaimer: I can only skim the surface of various highly complex rules I mention below. You can't draw conclusions about your own situation from this general overview. Your mileage will vary. Always consult your own tax professional.

Starting concept: net income

Business are taxed on net income, not gross income. Gross income is what you collect from customers. If you're a realtor, your gross income is your total commissions. If you operate an STR, gross income is your total rent paid by your guests, before any subtractions.

To figure out your taxes, you take this gross income and subtract from it all allowable business expenses: marketing, education, technology, licenses and fees (including Airbnb and credit card fees), office expenses, business driving and so on. The result is called net income. 

Example: your business collected $50k in gross income but had $30k worth of deductible expenses. The result is a $20k net income. You will be paying taxes on $20k, not on $50k.

In short, net income is your income after deductible expenses. If your expenses are greater than your income - you have a net loss. And you're probably broke. Or would have been if you were single.

Depreciation

Real estate investors get to subtract an additional deduction: depreciation of their properties. Unlike all other deductions, you don't directly make a payment for depreciation, so it appears to be some freebie paper deduction. It's neither freebie nor some imaginary expense. If you're not familiar with depreciation, read this detailed explanation: https://www.biggerpockets.com/...

Depreciation will lower your net income and, accordingly, lower your taxes. Depending on your numbers, depreciation can erase your net income down to zero or below zero, turning it into a net loss. If you already have a net loss without depreciation, depreciation makes it a bigger loss.

Cost segregation

In short, cost segregation is real estate depreciation on steroids. If your regular depreciation is not enough to erase all of your net income, cost segregation can do the trick. If you already have a loss, cost segregation can make it a much bigger loss. 

Like everything else that has potential benefits, it is badly overhyped and misunderstood. Read this other long post of mine, specifically about cost segregation myths: https://www.biggerpockets.com/... 

Applying business losses against other income

OK, you crunched your numbers, including depreciation, and your business has a $10k net loss. Suppose you still have a job and have not been fired for running your business while on the clock, and you're being paid a W2 salary - let's say $100k per year. Without your business, you would have paid IRS taxes on your $100k salary. 

Considering your business loss, you subtract this $10k loss from your $100k salary, and now you pay IRS taxes on a smaller amount, $90k. A little better, agree? The term we often use for this is "offset": you offset your W2 income with your business loss.

Are there any restrictions on such offsets?

You bet. In fact, there're several "layers" of restrictions, including "at-risk" rules, basis rules for pass-through entities, hobby rules, new (as of 2021) "excess business loss" rules, special rules for Section 179 and business interest, self-rental rules, vacation homes rules, and more. 

Basically, Congress does not want you to offset your W2 income (actually, any type of taxable income), for obvious reasons. Hence all of these very confusing rules. I am not going into this jungle now. I only mention it to warn you that there're MORE restrictions than just the "passive activity loss" rules that you must have heard of.

One very important concept to remember, and a beneficial one, for a change: restricted (the IRS calls them "disallowed" or "suspended") losses are NOT WASTED. They are pushed into future years or, in IRS jargon, carried forward. They are still yours. Eventually, you will be able to use them. Of course, there're exceptions to that, too. Shocking, right?

PAL - passive activity losses limitations

Here's the compromise our tax system created. If your losses come from passive investments (previously known as tax shelters) - they are restricted by PAL rules. If your losses come from something you "work" in, like your own construction business, they are nonpassive and exempt from PAL rules (although may still be limited by one of the other set of rules).

Knowing how we love to call anything we do "business", the IRS clarifies what is considered passive and therefore restricted by PAL rules:

1. All activities where you do NOT "materially participate" (which is also defined and will be discussed in a few minutes)

2. Renting of real estate properties

If this is what you do, then sorry, you cannot offset your W2 income with your losses.

Syndication K1s are normally in the first group. Rentals are normally in the second group. So, when syndicators and gurus promise you huge tax savings from their promoted investments - make sure you understand how PAL rules apply to you.

Exceptions to PAL restrictions

1. Limited losses allowed for landlords with modest incomes. If your total income (combined for spouses) is under $100k, you can offset up to $25k of it. If your income is over $150k, you can offset nothing. Between $100k and $150k, the $25k ceiling is phased out in a straight line.

2. Unlimited losses allowed for landlords who qualify for REPS - Real Estate Professional status. REPS is outside of the scope of this post. I will only mention two critical points:
- People with regular full-time W2 jobs cannot qualify for REPS (unless their no-W2 spouses can qualify)
- REPS has nothing to do with STRs, and vice versa

3. The infamous "STR loophole": Unlimited losses allowed for STRs, as long as you "materially participate"

"STRs loophole" - what is it?

The magic of STRs is that any amount of tax losses generated by STRs, including of course losses from depreciation and cost segregation, can offset your other income, and you don't need to qualify for REPS. Fantastic news for high-income earners...

...if not for strings attached. Here're the three most important gotchas:
          1. You need to actually have tax losses
          2. It needs to be an STR, which is defined as "average stay of 7 days or less"
          3. You need to pass the IRS "material participation" test

and this finally brings as to the myths. Ready?

Myth 1: STRs create huge tax losses

Actually, healthy STRs are supposed to be cash cows. Their cash flow should be high enough where even after depreciation you have some net income, i.e. a positive number, with a plus sign in front. It means that your taxes are going... UP! Yes, up, not down. If your STR has a killer cash flow - great, this is how it's meant to be! But your taxes are going somewhat up with it.

When you normally do have a significant net loss is in the 1st year, the year you place your STR in service. Why? Partially because you did not rent it for an entire year but mostly because of upfront expenses: getting it ready for rent, buying furniture, electronics, and other furnishings, stocking up on initial supplies, and so on. You deduct all of this in the first year, and you have a big tax loss (and an actual economic loss). After that, the tide usually reverses.

STRs typically have large tax losses in the initial year of operation - but only in their initial year!

But wait - cost segregation! Yes, cost segregation amplifies your loss greatly. But - again! - it is the first year loss! You cannot repeat the magic of cost segregation in later years. It is done once, and the game is over.

Myth 2: My STR can sometimes be enjoyed by my family and friends

Of course, you're entitled to use your own property any way you want. The property is yours. But its tax benefits may no longer be yours if you are not careful. Just be aware that it can kill the tax benefits of your STR.

To keep your ability to deduct STR losses, you cannot use the property for "personal purposes" for more than 14 days a year. Or, if it's more than 14 days, it cannot be more than 10% of the days it was rented to guests. So, if you had guests 200 days of the year, you get 20 personal use days. Break this rule - and your STR losses are no longer deductible.

It gets worse. Anytime your STR is used by family or friends below market rate - it is considered "personal use." Yes, even if they pay you. They must pay the market rate, the same rate you officially list for the property.

The good news is that you staying in your STR for the purpose of making repairs is not personal use. But bringing your toddlers along may contradict your "8 hours of working on the property" story.

Like pretty much all tax rules, this one has buts and ifs. Don't ask Google or ChatGPT. Ask your tax accountant.

Myth 3: It can be an STR for part of the year

It cannot. The 7-day rule refers to an average stay across the entire year. Add up all days the property was occupied during the year and divide it by the number of reservations - and this is your average. 

You cannot make your student housing an STR for the summer season only. I mean - you can, but you will still have to include the semester-long rentals when calculating your average annual stay, and it will break the 7-day rule. Also, don't try to get funny and split a month-long stay into four back-to-back weekly stays. Nice try though.

Myth 4: I'm hands-on, so I materially participate

"Material participation" is defined by the IRS, not by your Facebook friends and not by YouTube gurus. Although there are technically 7 ways to pass this test, usually only two of them are useful in the STR context:

A. You spend 500 hands-on hours in your STR business OR
B. You spend 100 hours, and nobody else (contractors, cleaners, property managers) spend more hours than you do

The hours have to be documented, and they have to be actual work specific to STRs. Dealing with your guests and contractors counts. Watching podcasts and going to meetups does not. Don't take this material participation requirement casually. It matters.

Myth 5: I qualify for Real Estate Professional, so I get to deduct all STR losses, too

REPS is a completely separate game. It is applicable to LTRs and passive investments. You don't need to qualify for REPS to use the STR loophole. More importantly, even if you do have passive investments and do qualify for REPS, it does NOT open the door to deducting your STR losses. STRs cannot be thrown into the same aggregation election that you use when qualifying for REPS.

The only way to unlock STR losses is to pass material participation, and pass it specifically for STRs.

Myth 6: STRs are reported on Schedule C instead of Schedule E

This myth comes from misunderstanding the IRS instructions that were specifically written to be confusing. For most STRs, it is Schedule E. The trick is to tell your tax software to treat losses on your STR as nonpassive. Otherwise, your tax software may restrict them by PAL rules.

There is a rare situation when you need to use Schedule C for your STRs. It is when you provide hotel-like services to your guests, such as daily maid service, meals or entertainment. As always, the rules are more complicated than I can explain in one paragraph, so check with your tax accountant.

Myth 7: I can write off my STR's initial rehab

STRs or LTRs - the rules are the same. Initial rehab of your property is not "repairs", it is "capital improvements." You basically add it to the cost of buying your property and then slowly depreciate.

Some parts of your rehab, such as appliances, carpets or driveway/parking can be written off immediately instead of being slowly depreciated. It involves using Section 179 or bonus depreciation, and I would not DIY this project, as distinction between repairs and capital improvements is one of the most confusing areas of the tax law.

And no, you do not need a cost segregation study to deduct these components of your rehab - if you have itemized invoices and receipts.

Myth 8: for a valid 1031 exchange, I must exchange STR for another STR

No, you don't. Any investment real estate will work as a potential 1031 exchange target, including LTRs, apartment complexes, commercial properties, undeveloped land, DSTs and so on. 

Remember that all depreciation has to be recaptured at sale. (If you don't - read my depreciation post: https://www.biggerpockets.com/...) Given that STR owners often use cost segregation and other aggressive depreciation strategies, a 1031 exchange should certainly be considered when it's time to sell your STR. And there're other potential capital gain tax deferral strategies to ask your accountant about.

Myth 9: this post will never end

Fine, I'll stop.

But here is the closing thought. Taxes are awfully complicated. STR taxes are no exception. You can have tax strategies working for you - or against you. As I warned in the beginning:

Take-home 1: I only scratched the surface. I could write a whole book about STRs, and it still will not cover everything, because...

Take-home 2: tax strategies are always case-by-case, there's no universal recipe, which is why...

Take-home 3: use a good tax professional, such as those listed here: https://www.biggerpockets.com/...

Looking to connect with fellow Canadians and those who have helped Canadians.  Who did you get your mentorship with?  Have both US and Canadian multifamily properties?

This is just my opinion but I wouldn't pay someone to find a property for me. There are enough resources out there to learn on your own & seek help through a local STR friendly RE agent. There isn't a magical formula for STR success but if you put the time & effort into it, you've got a good shot at making it work.

Spend some time looking at markets you're interested in. Use platforms like AirDNA, PriceLabs, Rabbu, etc. & either reach out to local agent or browse yourself on any of the listing services around (Zillow, Homes.com, etc).

If you think you've found something that makes sense, ask a local STR friendly agent their opinion on it. Post is here on Bigger Pockets. There are too many tools readily available on the internet to spend a large portion of your down payment on someone to find you a property.

Just my opinion but I would suggest trying on your own before spending thousands on basically a finders fee. Good Luck.

Love it thank you!!Bend Oregon here 😁

Great job again AJ.  I'm glad that you are the Oregon coast expert, right at our fingertips!

What about unincorporated Clastsop Co?

Number one, there is no "loophole." It is tax law.  A tax loophole would be defined as an ambiguity in tax law, usually unintended, that invites exploitation.  

Number two, bonus depreciation became permanent law with the recent budget bill signed into law.  

Feel free to correct me if I am mistaken.