Certainly rich people use 1031 Exchanges to defer taxes but it is also used by many others who would not consider themselves rich. It’s a highly popular tax strategy as you can imagine among real estate investors. I am not privy to their negotiations nor do I have an insider who might be representing the real estate industry onn this deal but it sure seems to me that Biden is throwing this out there to use as a negotiating tactic or bargaining chip for something else.
It seems difficult to believe they would just eliminate the 1031 Exchange. However, I could see they doing a phase out or a cap depending upon the amount of taxes deferred either per deal or cumulatively. If this ends up being the road this goes down, I’d like to see a counter balance be to extend 100% depreciation indefinitely instead of having bonus depreciation drop by 20% each year until it is zeroed out by 2027. Eliminating 1031s or putting some kind of cap in place would slow down some transaction activity I believe. A counter to that might be extending the 100% bonus depreciation ability. The bonus depreciation helps drive transactions as well. Transactions are good for the enconomy. We want to see more of them rather than fewer of them.
In the event someone reads this who has any influence on this, please remove the sunset provision in the current tax law and immediately bump bonus depreciation back to 100% and make it permanent with no sunset provision.
Tenant Improvements – Photo Credit John Murphy, Cost Seg Building
Are you looking to do tenant improvments (TIs) to your building? Are you aware that the Tangible Property Regulations (TPRs), i.e. repair regulations, are to your benefit as a building owner? There are specific guidelines to help building owners save money on their taxes when it comes to TIs. Many times we see that owners have capitalized items that could have been expensed. Not only is that the incorrect way to account for some items, the IRS doesn’t want you to do it that way and it’s costing you quite a bit in lost tax savings.
The words lessee and lessor in §1.162 and §1.263(a) (Tangible Property Regulations) are mentioned over 200 times. The TPRs are a dramatic change for landlord and tenants regarding the capitalization or expense deduction of tenant improvements.
There are two critical general rules under §1.263(a) for leased property and improvements.
The first general rule is that an improvement to a unit of property is NOT a separate unit of property from the building. The second general rule is if the landlord’s expenditure is NOT a restoration, adaptation, betterment, or improvement (RABI), then it is repair and maintenance. The unit of property for a taxpayer who is the lessee of an entire building is each separate building, its structural components, and building systems.
If the lessee leases only a portion of a building (such as an office, entire floor, or specified square footage), the portion of each building and the building systems associated with ONLY the leased portion is the unit of property. If the lessee pays for the tenant improvements, the lessee must generally capitalize the related amounts, which it pays to improve the tenant space. The only exception is if §110 applies. §110 is a construction allowance received by the lessee for the sole purpose of the improvement or when the improvement constitutes a substitute for rent.
In other words, tenants who do not lease the entire building and pay for their tenant improvements have their separate unit of property, and those improvements must be capitalized under the UNICAP rules §263A.
If the landlord pays for the tenant improvements, they must be put through the RABI rules (restoration, adaptation, betterment or improvement) to determine if the tenant improvements are a repair and maintenance item or if they must be capitalized. Generally, an amount capitalized as a tenant improvement is not a separate unit of property from the building. If the landlord’s tenant improvements are not a separate unit of property from the building, the landlord can compare the expenditure against the whole building, building structures, and building systems. The result will be that most landlord tenant improvements, (beyond the initial tenant improvements capitalized for each space), will be classified as a repair and maintenance expense.
Example
The landlord owns and operates two buildings. One is a 4-story office building of 40,000 square feet with the first floor consisting of retail space. The other building is a stand-alone 10,000-square-foot retail building. The landlord has two new tenants move in 2022. Tenant A leases the first floor of the 4-story building. Tenant B leases the stand-alone building. The landlord already had prior tenants in those spaces and has tenant improvements on its books for both of those building spaces. The landlord tears out the previous tenant improvements and does extensive new tenant improvements for both tenants.
Conclusion
The landlord can expense the tenant improvements for Tenant A in the office building but must capitalize the tenant improvements for Tenant B. The reason he can expense the TIs for the office building is that the space being renovated consists of only 25% of the building. The Tangible Property Regulations allow that if you are improving less than 30-35% of the building that those costs might be able to be expensed instead of capitalized. However, we will often see that owners have indeed capitalized such items.
Regarding Tenant B, the landlord must capitalize those improvements because because it’s 100% of the property. However, they can do a partial asset disposition (PAD) and get a significant tax deduction for the removal of those previous tenant improvements that had been in the building. PADs must be completed in the tax year in which the work (improvement / renovation) was done.
So what’s the difference between these two buildings? The landlord replaced a large physical portion of the stand-alone building that B occupied but only improved 25% of the building that tenant A was to occupy.
If you are a building owner and you are doing tenant improvements, reach out to consult with me at no charge. We can discuss your situation and see if it makes sense to expense or capitalize your improvements and whether or not it might qualify for a partial asset disposition.
The Upstate of South Carolina continues to be a top area in the U.S. for site selection for companies not only in the U.S. but around the world. Greenville, Mauldin, Anderson and Spartanburg continue to be at the top of the list for many companies. It’s a great area to live and do business and the location in between Charlotte (1.5 hours) and Atlanta ( about 2.5 hours) away make it a great location especially for transportation. On top of that, it’s a beautiful area. Check out what the Upstate SC Alliance had to say on LinkedIn.
And out of nowhere with almost no warning, the most important bank in Silicon Valley imploded this week. Fed Chair Jerome Powell was testifying in Congress and once again causing turmoil in the American markets midweek. Yesterday there were news stories about Silicon Valley billionaire, Peter Thiel and his Founders Fund telling people to get their money out of Silicon Valley Bank…that was yesterday. Today the bank has failed and the Feds have stepped in. My understanding is that actually the State of California closed them down and then immediately the Feds stepped in.
On CNBC today there was lots of talk about what will happen next. No one really knows. The numbers I hear kicked around is that this was a $200 Billion bank. The FDIC insures accounts up to $250,000. Word is that nearly all the accounts had more than $250,000 in them. The fallout is likely to be massive. Even if the U.S. Federal Government steps in somehow to try to make these people whole again, that will take time and I would think a lot of political clout. After all, we are talking about venture capitalists, Silicon Valley millionaires, tech start ups etc…does the country really want to bail these folks out?
So many companies will likely miss payroll starting on Monday. I’ve heard some tech execs will fund payroll themselves next week which is a nice gesture, but how long do they plan to do that? How long can they do that? When do they think the cavalry will come riding in to save them? I’m thinking at a minimum this is going to take months and possibly years to sort out. How much of the $200 Billion can be recovered? No one knows yet. Might be only be 10-20%? Possibly.
So are we near the end of the malaise and the slide in equities and home prices due to the Fed’s record breaking raising of interest rates to fend off inflation? I doubt it. It seems to me that SVB is the first big crack in the system and there will be more of this to come. We have only just begun to reset when it comes to residential and commercial real estate and the Fed is showing no signs of pivoting any time soon.
So what will be the impact on commercial real estate in Silicon Valley? I’m writing about this all the way across the country in beautiful Greenville, SC. I spent nearly a decade living in the San Francisco Bay Area so I have a particular affinity for the area and love following what is happening. I would expect many companies will fail as a result of SVB going under. They won’t have the cash to continue and that will have an impact on space they have leased. But knowing California and Silicon Valley, they’ll work their way through this over the next 18-24 months and soon enough this episode will be behind them. But in the meantime, there is likely to be a lot of pain and difficult times ahead for many individuals, companies and investors.
Will there be a ripple effect across the U.S. in terms of business investment and commercial real estate investment? It’s too early to tell. It will depend upon how big and dramatic things get as this unfolds. The market was already tightening up. Financing has been much more difficult the past 6 months or so. I would think that’s about to get even more difficult. Perhaps the Fed wants to keep pushing until we go right to the edge before the overall broader market siezes up. Let’s hope we aren’t going to get pushed to the edge again like 2008. No one wants to see that again.
@unusual_whales has posted a very interesting thread on some insiders selling stock in $SIVB recently. Coincidence? Maybe it was just that they had a window of time to sell like these executives do and this was nothing unusual afterall. Only time will tell.
BREAKING: Before the collapse of Silicon Valley Bank, $SIVB, the CEO sold $3.57 million of stock within the last two weeks. pic.twitter.com/mMEQhdVM2F
This is a new networking event that is spreading mostly throughout the South at this point. It’s geared toward those who work in and around commercial real estate, construction and development. If you provide services to any of the aspect of commercial real estate, this really is an enjoyable networking experience.
The organizers have made it by invite only and the cost to attend is $50 plus the roughly 10% clip that Eventbrite takes. They do provide drinks and appetizers and when I went to my first event in January in Greenville, the people who attended were quite friendly and open to conversation.
Here is a strategy I’m seeing for married couples where one spouse has a big W-2 income.
Please consult with your own tax advisor. I cannot give tax advice. I’m only sharing what I’m seeing some other real estate investors do.
Want to take advantage of cost segregation and minimize your taxes but you’re not a full time real estate pro or investor? Perhaps you’re a doctor, executive, a sales pro who has a big W-2 income who wants to get into real estate investing. Some who fit this category are purchasing STRs (Airbnbs, VRBOs) and managing them themselves. Generally speaking this would require that one’s spouse does the managing and not the person with the big W-2 income. The IRS categorizes the STRs differently from long term rentals (i.e. single family rentals, duplexes, apartments etc). The STR is considered an active trade or business. If you meet the IRS criteria as being actively involved in the property, you may be able to utilize the benefits of cost segregation and the large depreciation expense it generates to offset tax liability for the W-2 income. BTW, you don’t have to be making multiple six figures to make this work. This strategy could work for someone making less money. When I see it used, it’s often the big W-2 income earners who are doing this.
I was recently at an event where a CPA explained this strategy to a room full of real estate investors. It was discussed that they might consider converting a rental home to an STR to be able to take advantage of this.
Let’s say you buy an Airbnb for $425,000 – purchase price plus any improvements, furniture etc. The land is worth 20% ($85,000). That is deducted that since land can’t be depreciated which leaves a cost or basis of $340,000 which can be cost segregated. Depending upon the property, the study results would likely show that 20-25% of the $340,000 basis could be accelerated. That is $70,000 +/- in depreciation expense that could be used to lower you and your spouse’s overall income by $70k. If your tax rate is 32%, that’s over $20,000 in income tax savings. The study might cost $2,500 +/- which is a deduction. This is a 10x return – 1,000% return on your investment. If you were to scale this up to say $1,000,000+ Airbnb, just multiply these tax savings by 2-3x and you can see why people do this.
If you are one of those couples who has a big income and wants to use real estate to help reduce your tax liability but neither of you are a full time real estate pro, then discuss this strategy with your tax advisor. If you fit this description and you have a short-term rental, reach out to me for a no cost, no obligation estimate. You’ll then have solid information to go back to your tax advisor to determine if doing a cost segregation study might end up saving you a small fortune on your income taxes.
If you’re a building owner or a tax professional, CPA, Enrolled Agent, etc., and you’re looking for a cost segregation specialist here in South Carolina, I’m happy to be of help. I’m based out of Greenville, SC and represent Cost Segregation Services, Inc. The company has been studying buildings for 20 years. During that time we have successfully completed more than 35,000 engineering-based cost segregation studies across all building types and classes in all 50 states. While I’m based in South Carolina, I can study any buildings anywhere in the U.S.
Cost segregation works on all types of buildings where the owner is receiving a lease or rent payment. In other words, it can’t be your personal residence. Typically the basis or cost needs to be north of $200,000 in order for the economics to work for the owner, but we have done some studies on buildings with a basis as low as $150,000. This works on commercial buildings, retail strips, self storage facilities, hotels, apartments, single family rentals, Airbnbs, short term rentals, offices, warehouses, industrial, shopping centers etc.
Call me at 864-276-1448. I can provide a no cost, no obligation quote so you can discuss it with your tax advisor to see if doing cost segregation makes sense for you financially.
Photo: Demolition of Former Ruby Tuesday, Simpsonville, SC – John Murphy, Cost Seg Building
Last week as I was heading down Fairview Road in Simpsonville, SC to go have coffee with a local commercial broker and his client, I noticed that demolishion was taking place at the site that once was a Ruby Tuesday. It’s on a killer corner right at Grandview and Fairview Roads in Simpsonville. It’s just off I-385. I don’t know the traffic counts right there off hand but they are massive. There are a number of large strip malls right there in the area and Fairview Road is known for having a heckuva traffic problem.
According to the tax records, NIP Simpsonville LLC purchased the property 12/3/20 for $1,500,000. I just don’t recall if Ruby Tuesday was still operating then or not. I’m thinking maybe Covid killed it off and maybe they were nearing the end of their lease and let it go.
There is a fantastic Facebook Group for Simpsonville residents which may be one of the best Facebook groups I’ve ever belonged to….anyway, the group loves talking about what’s new in the city and someone posted that this building was finally coming down and that a new Outback Steakhouse was going in. It looks like the cost to build that new restaurant will be about $2 million.
Image: Google Street View of 1540 E Woodlawn Road, Charlotte, NC – Chick-Fil-A Restaurant
It’s a common issue many of us have seen whereever there is a Chick-Fil-A…cars backed up into the main roadway as they wait in line to place their order for food. Chick-Fil-A has really mastered the art of the drive-thru and during and after Covid, they were the first that I saw that doubled up their drive-thrus expanding capacity. McDonalds had kind of done that over the past few years but CFA had taken it to an entire new level.
Now they are looking at going 3 wide instead of 2 wide in their drive-thru lanes. This is an attempt to deal with the complaints of traffic being backed up along Woodlawn Road in Charlotte during meal time. Chick-Fil-A is proposing that they go full on drive-thru only operation and eliminate dining to only have room for 3 drive-thru lanes and keep more traffic on their property rather than spilling out onto Woodlawn. According to the article in Axios Charlotte, this has caused a conundrum for city planners and council because they want a community that is more walkable and less dependent upon the automobile. In this case, in order to possibly improve the situation of the traffic congestion, it only ends up making the business more dependent upon the automobile. That said though, I think the public has spoken regarding Chick-Fil-A and in most cases, people just can’t get enough of it and because CFA does such an awesome job with their service via the drive-thru that people continue to frequent their stores and opt to get their food that way.
Since this blog is about cost segregation, this project will be an exellent opportunity for partial asset disposition (PAD). Because part of the building will be removed, we would calculate what that value is and what the remaining basis is on the books and get that removed from the books. It’s an immediate tax deduction in the year in which the work was done and then that amount is also removed off the depreciation schedule for the building so the owner doesn’t have to worry about paying recapture tax on that property that is no longer part of the building. It’s kind of a double tax savings but it’s a use it or lose it tax benefit. A partial asset disposition must be taken in the tax year in which the work was done. If you don’t file it in that same tax year, you cannot amend your tax returns to claim the deduction.
The company that appears to own this Chick-Fil-A at 1540 E Woodlawn Road, Charlotte, NC looks to be Charter Venture LLC. I don’t know if they are considering doing a PAD or not.
Sale-leasebacks seem to be growing across different sectors of commercial real estate. We have certainly seen this happen with dental and medical practices but we are also seeing it in industrial and other commercial real estate. It frees up capital for the operating entity to go and invest and expand in the running of the business instead of having it tied up in the real estate.
Richard Blackwell, Vice President of Development, Southeast office for Agracel, Inc. published an excellent post on the value of sale-leasebacks for industrial real estate. I’m publishing his post here because this is the clearest articulation I’ve seen on what industrial owners may want to utlize a sale-leaseback strategy. This strategy does not only need to apply to industrial users. Certainly any owner-operator who is running their business out of a building they also own could look to see if executing a sale-leaseback would benefit their business. Excellent post Richard!
