How to Know When It’s Wise to Place Your Rentals in a C or S-Corporation

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Corporations get a bad rap in the investor community. This is often seen when an experienced investor who has shied away from corporations tells new investors that you do not need a corporation to start investing in real estate. They will then cite additional reasons as to why corporations are poor choices when undergoing entity structuring for your long-term rentals.

A couple of weeks ago, Chris Clothier wrote an article citing 10 reasons why one should not use a corporation for their rentals. Chris is a very smart guy, and I respect him a lot. Everything he said in his article was accurate, factual, and true. Chris explained why he does not use corporations for his rentals and also touched on when he thinks the use of corporations make sense.

The only problem I have with articles like this — and nothing against Chris — is that it instills a level of fear in a new investor’s mind. Worse, these articles written by successful people, have massive influence over less experience or new investors. This type of knowledge transfer may cause new new investors and less experienced investors to avoid corporations like the plague.

I encourage you to always keep an open mind when you read anything on the internet. Trust, but always verify. You should even verify the articles that I write, even though I’m a licensed professional.

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If we only ever consider one side of the coin, we would not be where we are today. Imagine if you listened to everyone that said investing in real estate is a bad idea (there are plenty of these people out there). You likely would not be reading this article today and you would be missing out on a great investment vehicle.

What if somebody told you that raising kids was a horrible idea or that a trip to the Virgin Isles was a bad experience? Would you forgo having kids or ever granting yourself a sweet Virgin Isles vacation?

Always consider the other side of that coin. Consider how a person’s prior experiences may have shaped his/her view, and how that person’s circumstances may differ from your own.

My goal today is to show you the flip side when it comes to using corporations in your real estate strategy. While there are many reasons to use a corporation, I am only going to discuss two. But the key takeaway is that corporations can be powerful tools and you should never swear off a perfectly viable strategy just because it has negative traits. While Chris was right in that corporations have negative traits, those traits can all be mitigated when working with a solid real estate CPA.

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When Placing Rentals in a C-Corporation Makes Sense

As you grow personally and professionally, you will find that your earnings will steadily increase. Of course, higher earnings equate to a higher tax bracket.

When you invest in rental property, especially rental property that performs well, you will likely have additional tax liability caused by the net profits generated from your rentals. If you find yourself in high tax bracket due to your other income sources and you have several well performing rentals, utilizing a C-Corporation may make a lot of sense.

You see, C-Corporations enjoy a 15% marginal tax rate up to $50,000 of net profit. So if you find that you are reporting net positive rental income and your effective tax rate is higher than 15%, you should consider the use of a C-Corporation. I’m not saying it will definitely work out for you, but this option should absolutely be explored.

Many of my high net worth/net income clients utilize a C-Corporation to some degree in their overall real estate investment strategy. Business owners also stand to benefit from a C-Corporation use.

Triggering a Taxable Sale

There are plenty of risks associated with utilizing a C-Corporation. One that Chris cited was the fact that you cannot remove the rental property from the C-Corporation without causing a taxable event. The reason for this is that the IRS considers distributing property from a C-Corporation to its members as a non-cash distribution. This is fancy lingo for a “taxable sale.” We accountants like to make things challenging so that ordinary folks are forced to hire us!

The reason for this is that the members own shares, and the shares of the corporation have a value attached to each. As an example, if you owned shares of Apple and the company issued you a piece of real estate, it would be recorded as a sale to a shareholder.

This is certainly a big problem and can cause unnecessary tax liability. However, as with any tax problem, teaming up with a professional who knows what he or she is doing will allow you to mitigate the risks.

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Using a Charitable Remainder Trust

One way to exit a C-Corporation is to use a Charitable Remainder Trust. By transferring the property into a Charitable Remainder Trust, the C-Corporation will not report a sale of the property. Instead, the Charitable Remainder Trust will sell the property and retain all of the cash from the sale. The Trust does not report capital gains and subsequently enjoys maintaining the entire principal balance of the real estate asset that was just sold.

This is a huge planning opportunity. By transferring to a Charitable Remainder Trust, the proceeds from the eventual sale of the property are not taxed at the Trust level, meaning you get to reinvest the full principal balance and watch your net worth grow exponentially. There are caveats, such as declaring a charitable organization and taking minimum distributions that you must then pay taxes on, but avoiding an initial massive tax bill is huge from a wealth planning perspective.

When Placing Rentals in an S-Corporation Makes Sense

I recently assisted one of my clients with the offloading of a property that he was living in as his principal residence. But when I say offloading, I really mean transferring it out of his personal name.

A Real Life Example

To give you some background information, this client was living in a primary residence that he had bought several years ago as a long-term live-in flip. He was sitting on $350k of capital gains.

During our initial consultation, he jokingly told me that his wife wears the pants, and she has decided that it is time to move across town, get a bigger house, and live closer to her family. They are expecting another child, and it is simply time to upgrade.

Before I continue with the story, I should explain the Section 121 exclusion. The Section 121 exclusion allows you to exclude $250k of capital gains from taxes, $500k if married filing joint, if you live in a property and use it as your primary residence for two of the last five years. Once you move out, you have three years to sell the property in order to meet that five-year look back test.

As you can see, you can theoretically live in a property for two years, move out and rent for three additional years, and still sell the property and avoid all capital gains up to $250k or $500k if married filing joint.

Back to the story. My client knew about the Section 121 exclusion and has effectively used it over the past 15 years. He knew that if they moved across town and left their current residence, he would have three years of rental use before he had to sell it to exclude his $350k of capital gains from taxes.

The problem was that my client is bullish on the neighborhood where his property is located. He thinks that over the next decade, the property stands to increase anywhere between 50 to 75% in value. He does not want to get rid of the property within the next three years and wants to hold for the long-term.

At this point, he decided to seek professional help. He wanted to see if there was any way to hold the property for 10 years and still receive the capital gain exclusion when he eventually sold.

Many of you reading are probably thinking, “Well, you can’t get the capital gain exclusion, but you can do a 1031 exchange or simply hold until you pass it on to your heirs.” Those two methods work, but there’s a third, less popularized method that works much better in unique situations.

That is to sell the property to an S-Corporation that you own.

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Using the Section 121 Exclusion

By selling the property to your S-Corporation, you will have a qualified sale. This will require that you report the sale on your own tax return. Because you report the sale, you will also be able to utilize the Section 121 exclusion. My client’s tax liability will be nil as a result of this sale.

But it gets better. The S-Corporation now receives a stepped up basis. Basically, because the S-Corporation purchased the property, the S-Corporation’s tax basis in the property is the purchase price or fair market value. This means that we have effectively made the capital gains up until the point of sale “disappear.”

An example will help illustrate. My client’s original basis in his home was $200k (this price he originally purchased it at). His current value is $550k, which means he is sitting on gains of $350k.

When he sells the property to the S-Corporation, he reports capital gains of $350k on his tax returns. But because he has lived in the property as his primary residence for two of the past five years, he can utilize the Section 121 exclusion. Bob is married, so he gets to exclude $500k of capital gains which erases his tax liability from the $350k he reported.

Additionally, the S-Corporation reports the property with a basis of $550k on its books. This means that, in the future when the property is sold, the S-Corporation will pay capital gain taxes on the future net selling price, less $550k.

The “to-date” capital gains have essentially disappeared.

Conclusion

While I hope you took something away from the two strategies outlined above, my larger point is to never disregard a strategy simply because you read an article citing reasons not to do something.

In your real estate investing career, it is imperative that you keep an open mind and analyze all strategies available for your use. Failing to do so can result is massive headaches and missed opportunities.

Do you keep your rentals in corporations? Why or why not?

Weigh in with a comment below!

About Author

Brandon Hall

Brandon Hall, owner of The Real Estate CPA, is an entrepreneur at heart who happens to be good at taxes. Brandon is a real estate investor and CPA specializing in providing business advice and creative tax strategies for real estate investors. Brandon's Big 4 and personal investing experiences allow him to provide unique advice to each of his clients. Sign up for my FREE NEWSLETTER to receive tips and updates related to business and taxes.

25 Comments

  1. Kareem A Shittu on

    Thanks for the article. I live in theNew York area and I just bought Brandon Turners book on rental. I want to buy my first property by the 1st quarter of 2017. I am getting familiar with as many books as I can lay my hands on. I want to ask if I can use the house hacking method with my personal name, S or C corporation. What’s your best advice to me as I step into the field. Thanks.

  2. Jerry W.

    Brandon,
    Top notch advice. Thank you for taking the time to share your expert advice. I started off using a Sub S corporation, but wish sometimes I had used a LLC. There is a lot that goes into choosing your entity.

    • Brandon Hall

      Thanks Jerry, always good to hear you liked the article considering your law background! Entity planning is certainly key. S-Corps can save you money but they can be a pain to maintain and you need a carefully planned exit from the beginning.

    • Brandon Hall

      Many reasons. You may want to move in and make it your primary. Perhaps your estate planning is suggesting you move it into a trust or different form of entity. You may want to make it easier for your heirs. C-Corps make all of that challenging.

  3. Marshall Prince

    Great article!

    I like how you stress that income levels/tax bracket,overall assets,etc,etc need to be considered before any smart move can really be made. Sometimes, in some cases, putting property in your name is best. In other cases putting it in a Corp is best. It really boils down to what fits into the longer term strategy.

    I know a few successful investors who have all of their property in their name, no need for corps. They also have a maintaining strategy, an exit strategy and a growth strategy.

    I know a few successful who have all of their property in various corps and/or LLC, but that filing fits into a much larger picture for them. It really depends on the person.

  4. Dan Clark

    Brandon,

    Wouldn’t it make sense to wait until closer to the end of the 5-year period considered for the exclusion (3 years from when the client moved) to sell to the S-corp? What if the house gains another $100,000 in value over those 3 years? Would you not be losing out on an additional $100k in basis for the S-corp?

    Also, what is the advantage of using an S-corp vs. an LLC with an election to be taxed as an S-corp?

    Thanks for the article. Great strategy.

    • Brandon Hall

      Dan – it depends on the situation, but yes it’s generally better to wait for three years and then sell to the S-Corp. Keep in mind though, that if you rent it for three years, you’ll have to pay depreciation recapture tax when you sell it and that won’t be covered by the Section 121 exclusion.

      S-Corp = LLC taxed as a S-Corp or a C-Corp taxed as a S-Corp. You can’t go straight to S-Corp as it’s a federal tax status, not an entity.

  5. Barbara Hess

    Are there liability considerations one should weigh when considering putting a property in an S-Corp as opposed to putting the property in one’s own Name?

    Can putting the property into the family trust mitigate those potential liabilities (Suits from tenants).

  6. David Faulkner

    Interesting and creative strategy with the 1031 example for the S-corp. Only issues with it I see (correct me if I’m wrong) are:
    1)The transfer would increase the RE tax basis. This may not matter too much in many states, but it sure as heck could in CA (due to resetting prop 13 protections).
    2)Transferring a financed primary to an S-corp may (if you’re unlucky) trigger the “due on sale” clause. Only ways around it are owning 100% equity or refinancing to the S-corp (likely under harsher terms).

    Thoughts?

  7. Geetika Casmon

    Great article. My question is similar to David F in that would this transaction trigger a “due on sale”? I know many transfer property in personal name into an LLC with a quit claim deed and not worry about reporting that to the mortgage company. Does it work the same way for this example?

    Could you do a similar type of transaction with a C Corp?

  8. Matt Faircloth

    Hey Brandon,
    Great article! I just shot a video blog for BP on S Corps also. We use them for our property management company and funnel our flips, consulting gigs, and other capital gain activity through it. It works for us because as my CPA has explained it, we have a W-2 payroll. I can pay myself a taxable salary on part of the profit, and the remaining profit is considered business income which is not subject to Self Employment Tax. What are your thoughts on that structure?
    Take care,
    Matt

  9. Grant Gregory

    I think using a c-corp for rentals is a bad idea. Getting appreciated real estate out of C Corporations is a big reason NOT to do this. I have been a practicing CPA for 15 years, and consulted with estate attorneys on this exact subject. Not only can it create disadvantageous tax situations, but it can also muddle the waters for the client’s estate as well. There are much simpler and effective strategies for holding rental real estate.

    • Brandon Hall

      Hi Grant – thanks for you comment. Employing a “never C-Corp” mindset will limit your overall strategies. Such was the point of the article. You need to look at every angle before implenting anything, and often times, CPAs and attorneys do their clients a disservice by following general rules.

      • Grant Gregory

        It’s not a disservice by following general rules of experienced estate attorneys. Nor did I say never. It’s having the experience to know that putting rentals into a C-Corp creates many disadvantages. I’ve heard your strategies of creating all these various entity types and utilizing many triangular entity structures. You are not the first nor the last to advertise these various structures. I think you have to be careful in setting up all these entities in order to mitigate taxes in the short-term. I have seen the IRS come in and knock down entity set ups that have no inherent basis and simply act as tax shelters (read lack of economic substance doctrine). Not only this, but setting up entities that own other entities can create a basis nightmare, and what happens upon disposition of these entities should be taken into account as well. Setting up rentals in a C-Corp adds a ton of additional costs to the client that can more than outweigh the tax savings -(i.e. additional record keeping, return filings, accounting for intercompany transactions, additional basis schedules, payroll services, C-Corp minutes, stock ledgers, etc) plus getting the money out as the owner is now a tax problem. You have to run payroll or take taxable dividends. Yes, it drives up revenue for the CPA, but is it really in the client’s best interest in the long term? You really have to ask yourself, do the benefits exceed the gains? Rentals need asset protection from a legal standpoint, so do an LLC for each rental, and come tax time, they can all be filed on one return.

        • Brandon Hall

          You’re making the assumption that these are the only entity structures that I employ and totally disregarding the points I’m making in the article.

          The overarching point is that following general rules will limit your ability to see the entire picture. That’s the point I’m trying to make. Too many people take for gospel the “general rule” articles they read on the internet. My entire purpose here was to essentially say “hey there’s another side to this that you may be not be seeing.”

          You make good points, and I never disagreed with you. I’m quite transparent with my clients in terms of monetary and non-monetary costs involved with various tax and entity strategies.

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