Beginning January 1, 2013, a new 3.8 percent tax on some investment income will take effect. Misleading information continues to circulate indicating this tax, which was passed as part of health reform in 2010, is a tax on all home sales. REALTORS® say it's not true.
According to the National Association of REALTORS® (NAR), the 3.8 percent tax is not a transfer tax on real estate sales and similar transactions. The new tax does not eliminate the benefits of the $250,000/$500,000 exclusion on the sale of a principal residence. Only that portion of a gain above those thresholds is included in Adjusted Gross Income (AGI) and could be subject to the tax.
"Consumers who have large capital gains should seek the guidance of a tax professional because the elements that comprise AGI differ from taxpayer to taxpayer," explained Suzanne Yost, president of the Silicon Valley Association of REALTORS®.
NAR has developed the following top 10 list of things to know about the 3.8 percent tax:
1. When you add up all of your income from every possible source, and that total is less than $200,000 ($250,000 on a joint tax return), you will not be subject to this tax.
2. The 3.8 percent tax will never be collected as a transfer tax on real estate of any type, so you'll never pay this tax at the time that you purchase a home or other investment property.
3. You'll never pay this tax at settlement when you sell your home or investment property. Any capital gain you realize at settlement is just one component of that year's gross income.
4. If you sell your principal residence, you will still receive the full benefit of the $250,000 (single tax return)/$500,000 (married filing joint tax return) exclusion on the sale of that home. If your capital gain is greater than these amounts, then you will include any gain above these amounts as income on your Form 1040 tax return. Even then, if your total income (including this taxable portion of gain on your residence) is less than the $200,000/$250,000 amounts, you will not pay this tax. If your total income is more than these amounts, a formula will protect some portion of your investment.
5. The tax applies to other types of investment income, not just real estate. If your income is more than the $200,000/$250,000 amount, then the tax formula will be applied to capital gains, interest income, dividend income and net rents (i.e., rents after expenses).
6. The tax goes into effect in 2013. If you have investment income in 2013, you won't pay the 3.8 percent tax until you file your 2013 Form 1040 tax return in 2014. The 3.8 percent tax for any later year will be paid in the following calendar year when the tax returns are filed.
7. In any particular year, if you have no income from capital gains, rents, interest or dividends, you'll never pay this tax, even if you have millions of dollars of other types of income.
8. The formula that determines the amount of 3.8 percent tax due will always protect $200,000 ($250,000 on a joint return) of your income from any burden of the 3.8 percent tax. For example, if you are single and have a total of $201,000 income, the 3.8 percent tax would never be imposed on more than $1,000.
9. It is true that investment income from rents on an investment property could be subject to the 3.8 percent tax. But: The only rental income that would be included in your gross income and therefore possibly subject to the tax is net rental income: gross rents minus expenses like depreciation, interest, property tax, maintenance and utilities.
10. The tax was enacted along with the health care legislation in 2010. It was added to the package just hours before the final vote and without review. NAR strongly opposed the tax at the time, and remains hopeful that it will not go into effect. The tax will no doubt be debated during the upcoming tax reform debates in 2013.
The Silicon Valley Association of REALTORS® (SILVAR) is a professional trade organization representing over 4,000 REALTORS® and Affiliate members engaged in the real estate business on the Peninsula and in the South Bay. SILVAR promotes the highest ethical standards of real estate practice, serves as an advocate for homeownership and homeowners, and represents the interests of property owners in Silicon Valley.
The term "REALTOR®" is a registered collective membership mark which identifies a real estate professional who is a member of the National Association of REALTORS® and who subscribes to its strict Code of Ethics.
Variations of this article have appeared in local area newspapers.
For further information, please email or call the SILVAR office at (408) 200-0100.