by Michael Lodge
Clients always ask what is passive activity as it relates to their real estate and their business. How does it apply to taxpayers with income being driven by their business. So let’s look at how the IRS describes passive and non-passive activities.
Generally, a passive activity is any rental activity OR any business in which the taxpayer does not materially participate. Non-passive activities are businesses in which the taxpayer works on a regular, continuous, and substantial basis. In addition, passive income does not include salaries, portfolio, or investment income.
As a general rule, the passive activity loss rules are applied at the individual level. Although Internal Revenue Code Section 469 was enacted to discourage abusive tax shelters, its impact extends far beyond shelters to virtually every business or rental activity whether reported on Schedules C, F, or E, as well as to flow through income and losses from partnerships, S- Corporations, and trusts. Generally, the law does not apply to regular C-Corporations although it does have limited application to closely held corporations.
There Are Two Kinds of Passive Activities:
- Rentals, including both equipment and rental real estate, regardless of the level of participation
- Businesses in which the taxpayer does not materially participate on a regular, continuous, and substantial basis
Types of Income and Losses
Income and losses on a tax return are divided into two categories:
- Passive: Rentals and businesses without material participation. A limited partner is generally passive due to more restrictive tests for material participation. As a result, limited partners will generally have passive income or losses from the partnership
- Nonpassive: Businesses in which the taxpayer materially participates. Also, salaries, guaranteed payments, 1099 commission income and portfolio or investment income are deemed to be nonpassive. Portfolio income includes interest income, dividends, royalties, gains and losses on stocks, pensions, lottery winnings, and any other property held for investment
Income and losses from the following activities would generally be passive:
- Equipment leasing
- Rental real estate (with some exceptions)
- Sole proprietorship or farm in which the taxpayer does not materially participate
- Limited partnerships with some exceptions
- Partnerships, S-Corporations, and limited liability companies in which the taxpayer does not materially participate
Income and losses from the following activities would generally be nonpassive:
- Salaries, wages, and 1099 commission income
- Guaranteed payments
- Interest and dividends
- Stocks and bonds
- Sale of undeveloped land or other investment property
- Royalties derived in the ordinary course of business
- Sole proprietorship or farm in which the taxpayer materially participates
- Partnerships, S-Corporations, and limited liability companies in which the taxpayer materially participates
- Trusts in which the fiduciary materially participates
Income From Self-Rented Property
It has been common tax practice for shareholders in closely held corporations to personally own the building (and sometimes equipment and vehicles as well) and rent it to their corporation. For additional information on tax treatment, see the Passive Activity Losses Audit Technique Guide.