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Home Sales: Do You Really Know the Tax Exclusion Rules?

By Robert D. Cavanaugh, CLU Published 03/17/2007 | Real Estate

A single person can exclude up to 250,000 of the gain from the sale of their home and a married couple up to 500,000. However, there are qualifications, rules, exceptions to the rules and special situations. This article outlines the major rules and clears up many misunderstandings.

First, you must meet two tests: the ownership test and the use test.

The Ownership Test

This test requires ownership of the property for at least two of the five years prior to the sale. The ownership does not have to be continuous.

The Use Test

The use test requires that you lived in the home as your principal residence for 2 years during the 5 years preceding the sale. Again, the 2 years do not have to continuous. Short temporary absences, such as vacations or spending a couple or months in the summer at the lake, are periods of use. Even if you rent out your home while you are gone, there is no interruption in your period of use.

The periods used to satisfy both of these tests do not have to be the same. In addition, members of the Armed Services or Foreign Services can choose to suspend these tests for any period they or their spouse is on "qualified official extended duty".  If people become mentally or physically unable to care for themselves or have to go into a nursing home, the two-year use requirement shortens to one year. Therefore, it is possible to qualify without actually living in the home for the required two years.
For people who have lost their homes to hurricanes, floods, tornadoes and other natural disasters, or have had them condemned, a special rule applies. They can add the time they lived in the home destroyed or condemned to the time they have lived in the home on which they want to exclude gain.

What is a Home?

A home, for capital gain exclusion purposes, must be your "main" home. It could be a house, houseboat, mobile home, co-op apartment or condominium. Note that if you sell the land on which your home is located, you cannot exclude the gain from the sale of the land. An example would be selling the land on which your mobile home sets, buying another piece of property and moving your mobile home to the new location.

If you own a vacant lot next to your home and sell it as part of your home sale, special rules apply. If you own a home in the city and a cabin in the mountains, the home where you spend the most time is the one where the tax exclusion applies. There are at least nine tests used to determine your main home if you own more than one.

The Exclusion

First, you must meet the ownership and use tests, or fall under one of the exceptions, and have not used the exclusion on the sale of another home within two years of the current sale.

If you are single, you can exclude up to 250,000 of the gain on a sale. If you own the home jointly with someone else, and each of you files single returns, each can exclude up to 250,000 of their interest in the home.

If you are married and file a joint return, you can exclude up to 500,000. However, you must meet one of several conditions. Either you or your spouse must meet the ownership test. Both you and your spouse must meet the use test. During the two years preceding the current sale, neither of you excluded gain from the sale of another home.

If your spouse dies, and you do not remarry before the sale, you can count the time your spouse owned and lived in the home to satisfy the ownership and use tests.

In todays society, many scenarios require careful adherence to the rules. For example, a single woman sells her home and remarries a man who owns a home. They decide to sell. Another common example: Mary and John are single and each owns a home. They marry and decide to sell each of their homes and buy another. Here is another: Janet receives the home as part of a divorce settlement and later decides to sell.

The Partial Exclusion

Even if you do not meet the ownership and use tests, it still may be possible to claim a partial exclusion under certain circumstances.

If you have to sell your home because of a change in employment, your home sale could qualify under a "safe harbor." The rules contain many tests to determine if the safe harbor applies.

If the primary reason you have to sell your home is health-related, you could qualify for a partial exclusion. The health issue applies not only to you, but also to a large list of people classified as your extended family.
Unforeseen circumstances also qualify for a partial exclusion. These include an involuntary conversion of your home, man-made or natural disasters, death, unemployment, a change in employment status, divorce and multiple births.

I hope you have seen that applying what you may think the rules are to the sale of your home may not be as simple as you thought. With all the rules and exceptions, it would be prudent to solicit the advice of an accountant, tax attorney or real estate professional prior to listing your home.

Robert D. Cavanaugh, CLU is a 36-year financial and estate planning veteran and author of the free newsletter, "The Estate Preservation Advisor". For cutting-edge, easy-to-understand financial planning resources and techniques to increase your income, reduce taxes and preserve your estate, go to http://theestatepreservationadvisor.com/freevideo.htm