This safe harbor is available to taxpayers who seek to claim the Qualified Business Income Deduction with respect to a rental real estate enterprise. If the safe harbor requirements are met, the real estate enterprise will be treated as a trade or business. This will also require the rental real estate enterprise to issue Form 1099’s as appropriate – a significant change.
Qualified passthrough entities (RPEs) may also use this safe harbor in order to determine whether a rental real estate enterprise is a trade or business. C Corporations will not qualify for this deduction. Failure to satisfy the requirements of this safe harbor does not preclude a taxpayer from otherwise establishing that a rental real estate enterprise is a trade or business.
Rental Real Estate Enterprise
A rental real estate enterprise is defined as an interest in real property held for the production of rents and may consist of an interest in multiple properties. The individual or pass through entity relying on this revenue procedure must hold the interest directly or through an entity disregarded as an entity separate from its owner.
Taxpayers must either treat each property held for the production of rents as a separate enterprise or treat all similar properties held for the production of rents as a single enterprise. Commercial and residential real estate may not be part of the same enterprise. Taxpayers may not vary this treatment from year-to-year unless there has been a significant change in facts and circumstances.
Safe Harbor
Solely for the purposes of the Qualified Business Income Deduction, a rental real estate enterprise will be treated as a trade or business if the following requirements are satisfied during the taxable year with respect to the rental real estate enterprise:
(A) Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise.
(B) For taxable years beginning prior to January 1, 2023, 250 or more hours of rental services are performed per year with respect to the rental enterprise.
For taxable years beginning after December 31, 2022, in any three of the five consecutive taxable years that end with the taxable year (or in each year for an enterprise held for less than five years), 250 or more hours of rental services are performed per year with respect to the rental real estate enterprise and
(C) The taxpayer maintains contemporaneous records, including time reports, logs, or similar documents, regarding the following:
(i) hours of all services performed.
(ii) description of all services performed
(iii) dates on which such services were performed and
(iv) who performed the services.
Records are to be made available for inspection at the request of the IRS. The contemporaneous records requirement will not apply to taxable years beginning prior to January 1, 2019.
Rental Services
Rental services for purpose of this revenue procedure include:
(i) advertising to rent or lease the real estate.
(ii) negotiating and executing leases.
(iii) verifying information contained in prospective tenant applications.
(iv) collection of rent.
(v) daily operation, maintenance, and repair of the property
(vi) management of the real estate
(vii) purchase of materials.
(viii) supervision of employees and independent contractors.
Rental services may be performed by owners or by employees, agents, and/or independent contractors of the owners. The term rental services do not include financial or investment management activities, such as arranging financing; procuring property; studying and reviewing financial statements or reports on operations; planning, managing, or constructing long-term capital improvements; or hours spent traveling to and from the real estate.
Certain Rental Real Estate Arrangements Excluded
Real estate used by the taxpayer (including an owner or beneficiary of an RPE relying on this safe harbor) as a residence for any part of the year is not eligible for this safe harbor. Real estate rented or leased under a triple net lease is also not eligible for this safe harbor. For purposes of this revenue procedure, a triple net lease includes a lease agreement that requires the tenant or lessee to pay taxes, fees, and insurance, and to be responsible for maintenance activities for a property in addition to rent and utilities. This includes a lease agreement that requires the tenant or lessee to pay a portion of the taxes, fees, and insurance, and to be responsible for maintenance activities allocable to the portion of the property rented by the tenant.
Procedural Requirements for Application of Safe Harbor
A taxpayer or pass-through entity must include a statement attached to the return on which it claims the Qualified Business Income Deduction or passes through information that the requirements in of this revenue procedure have been satisfied.
The statement must be signed by the taxpayer, or an authorized representative of an eligible taxpayer or pass through entity, which states: “Under penalties of perjury, I (we) declare that I (we) have examined the statement, and, to the best of my (our) knowledge and belief, the statement contains all the relevant facts relating to the revenue procedure, and such facts are true, correct, and complete.” The individual or individuals who sign must have personal knowledge of the facts and circumstances related to the statement.
The proposed revenue procedure, included in Notice 2019-07, allows individuals and entities who own rental real estate directly or through a disregarded entity to treat a rental real estate enterprise as a trade or business for purposes of the QBI deduction if certain requirements are met. Taxpayers can rely on this safe harbor until a final revenue procedure is issued.