Over the summer, a 694 page "Amendment to Senate Amendment to House Amendments to Senate Amendment to H.R. 3221" was passed into law.
You may know it by its Short Title, the Housing and Economic Recovery Act of 2008.
Buried in section 3092 was a little item to upset my Housing Recovery of Ballardia Acts of 2008.
Let's read it, shall we?
(4) EXCLUSION OF GAIN ALLOCATED TO NON QUALIFIED USE.—
(A) IN GENERAL.—Subsection (a) shall not apply to so much of the gain from the
sale or exchange of property as is allocated to periods of nonqualified use.
(B) GAIN ALLOCATED TO PERIODS OF NONQUALIFIED USE.—For purposes of
subparagraph (A), gain shall be allocated to periods of nonqualified use based on the
(i) the aggregate periods of non qualified use during the period such property
was owned by the taxpayer, bears to
(ii) the period such property was owned by the taxpayer.
(C) PERIOD OF NONQUALIFIED USE.— For purposes of this paragraph—
(i) IN GENERAL.—The term ‘period of nonqualified use’ means any
period (other than the portion of any period preceding January 1, 2009)
during which the property is not used as the principal residence of the
taxpayer or the taxpayer’s spouse or former spouse.
(ii) EXCEPTIONS.—The term ‘period of nonqualified use’ does not include— (I) any portion of the 5-year period described in subsection (a) which
is after the last date that such property is used as the principal
residence of the taxpayer or the taxpayer’s spouse,
(II) any period (not to exceed an aggregate period of 10 years) during which
the taxpayer or the taxpayer’s spouse is serving on qualified official
extended duty (as defined in subsection (d)(9)(C)) described in clause (i),
(ii), or (iii) of subsection (d)(9)(A), and
(III) any other period of temporary absence (not to exceed an aggregate period
of 2 years) due to change of employment, health conditions, or such other
unforeseen circumstances as may be specified by the Secretary.
So who Knows what this little blurb of legalese means, really. But Martin assures me that it means a change to the Capital Gains Exclusion Rule, which, before the passing of these 694 pages, allowed an individual to keep, tax-free, profits up to $250k ($500k if married filing jointly) for the sale of his or her (their) primary residence provided that person(s) had lived in the home for 2 out of the previous 5 years.
Section 3092 says that starting January 1, 2009, if that home had NOT been a primary residence (say, rented or a vacation home) for any part of those 5 years, then capital gains would ONLY be excluded for the portion of the last 5 years in which the home had been a primary residence.
So....live in it for 2 years, rent it for 3 years, and only 2/5 = 40% of the gains are now tax-free. And that appears to apply to all gains, even if it's been owned for, say, 15 years, only the last 5 count.
This presents a little problem.
You see, back in 1999, Martin rented out his condo and I rented out my house, and we proceeded to shack up together in an apartment in Belltown.
Yes, he kept the condo. And without a little action on our parts ASAP (before 1/1/09), he would be subject to the new rules for a condo he's owned for 15 years. Conveniently for him (inconveniently for me), his tenant of 3 years gave notice on October 9th.
Activity Frenzy. We are moving to the condo.
WHOSE housing recovery act is this, exactly? Certainly isn't mine.