How to Best Utilize Passive Losses w/ Brandon Hall

The passive loss will be suspended in period four because I cannot use it I don’t have I’m not a real estate professional, I’m not defending anything, so I can’t use that passive loss.

Anyone they even try to rent them out.

Hey, simple passive cash flow listeners. Today we have Brandon Hall, a CPA, we are going to be talking about some of the very commonly used tactics that we talked about almost every other week in the mastermind, you guys can learn more about that. It’s simple passive cash flow, calm slash journey. We’ll see accredited investors in there. We’re talking about how we’re going to customize what we’re going to talk about generally today. But yeah, thanks for jumping on Brandon, these questions always come up. So it’s always great to get a real CPA to kind of break it down for us.

Yeah, happy to be here and happy to help.

So let’s kind of start start from the top right, like syndication investors get passive losses, maybe you can kind of break that down, and then we can kind of get into Well, how do we use those? Sure,

sure. So when you invest in a syndication as a limited partner, the losses coming back are definitely going to be considered passive. And those passive losses can only offset passive income from your other passive activities. So I could have like a syndication that is producing positive net income, and that’s passive income. And then I could have another syndication that I’ve just invested in, that’s going to push back at the last from like a cost of creation study, I can use the losses from syndication beams offset the income from syndication a, so you can cancel them out. But if I have net losses, even after I do, even after I offset all my income, by net losses, they are net passive losses, and they get suspended and carry forward into future years until it can generate passive income, or until I sell a syndication investment adding game. So we don’t lose the suspended losses, they just sit on our books to hang out until we can generate income to tap into them at some future point.

And one of the main reasons why I invest in syndications these days, instead of your little one off single family home is single family homes, you can deduct it over what 27 years or so which is very lame, it’s gonna take forever to get that but with those with when you do a cost segregation, which I typically pay maybe five grand to do one of those, I can extract a third of all the depreciation in the first year distribute that to all passive investors. And I don’t know what you’re seeing Brandon, but like, typically, on an investor load where they’re using pretty healthy leverage 70 to 80% loan the value, they put in 100 grand they’re getting anywhere from 50 grand to over 100 grand a passive losses to the first year. But what do you kind of seen as you guys put together all these k ones?

Yeah, yeah, I think we pegged somebody with somebody my firm was tracking, I believe the average was around 90% of whatever dollar you invest is going to come back as a passive loss across all syndicates investments that are out there. So that includes the 50s. That also includes hundreds.

Yeah, something I’ve been seeing these last few months. And if you’ve been seeing deals with like COVID reserves, I don’t know if that’s the right term, but you’ve got to stick three to six months of reserves in the bank can be a substantial amount of money, but it’s definitely been diluting the cost segregation a little bit, maybe bringing it down. 10%. But still pretty good. I mean, can’t complain. Yeah,

yeah, definitely. Definitely. I mean, we’ve seen I think gold reserves smart. Just never know what’s going to happen over the coming years. But yeah,

yes. And what’s a newer thing too, yet, you’re seeing a lot of these deals that people are using this different class of investors private equity, what it’s called, it’s kind of a fixed rate of return. They get paid first, but they don’t get any upside. But the one cool thing is they still are considered equity investors and therefore get a piece of the losses too. Yep. Yep. The nice thing about LLC syndicates is that you can structure them really hard you like losing all sorts of interesting structures. I mean, the typical structure is some sort of 2080 3070 4060 split between the GP and LP pref on there. But we’ve seen special allocations of depreciation and all sorts of fun stuff. Well, so investor, you know, puts in 100 grand and maybe gets 50 or $70,000 of his passive losses. Maybe take us through how to use that, right?

Yeah. So if I invest in syndication, and I receive a passive loss of Indian mount, the question is, can I use the passive loss and let’s assume that I don’t have any other passive income. I don’t have any other passive activities, that passive loss will be suspended in period four, because I cannot use it. I don’t have I’m not a real estate professional. I’m not materially defending anything, so I can’t use that passive loss. But on the flip side, let’s say that I’m built out my own real estate portfolio, so I have five duplexes, and I self manage those five duplexes. And let’s assume that on those five duplexes I, I’ve materially participate and I qualify as a real estate professional. So those five duplexes are non passive activities. When I then go and make a syndication investment, I can make an election to aggregate all of my rental activities into one activity for the purpose of this section 469 tests. So what that means is, if I put $50,000 into syndication, when I’ve already qualified as a real estate professional, and I already materially participate on my own portfolio, I can aggregate in the syndication investment into my overall portfolio. And then I can take a loss, a non passive loss from that syndication investment. If I don’t make that aggregation election, what happens is that syndication investment will still be considered passive. So even if I’m a real estate professional, and even if I materially participate in my, my own portfolio, if I don’t make that aggregation election, I still might not be able to use those losses. So by making the aggregation larger, what I’m, what I’m effectively doing is I’m re characterizing that loss from passive to non passive, and then I can take that loss. So what we’ll see a lot of our clients do is build out their own real estate portfolio, they’ll self manage, it will do all the repairs, or coordinate with all the tenants themselves. It doesn’t have to be anything, it doesn’t have to be a substantial portfolio, but one that will drive you to the 750 hour test in more than half your time test to qualify as real estate professional. And through that they’re also materially participant, so they have that non passive portfolio, and then they’ll go and place syndication investments to boost their current year losses.

And that’s something that’s common that CPAs will not get on board with the aggregation or that grouping.

Oh, no

aspect right there. That’s probably why you need a new CPA, listen to this right now, and need to look at you cross side, I just all I say is like, well, that’s why they have a day job, right?

So but if you if it’s a good point, and if your CPA ever challenges you on that, then I would ask them to go fill out form 8582. That’s where all these losses get aggregated at the end of the day. And see what they say that

a good point. I mean, we talk a lot about this stuff on these podcasts or in these groups. And we’re just giving you the ideas and the ammo. I mean, it’s, I always tell my folks in my mastermind, like, Look, you guys are empowered with this information. Your CPA to me isn’t really a tax planner. I mean, they’re not planning for you that they’re there to do your paperwork. If you get a good one. Yeah, maybe they can, but they don’t know what deals are going into. They don’t know how much passive losses they’re going to be. They don’t know what the time horizon or the risk reward profile of those deals are. It’s unfair for them to be able to tax plan out in the head, this is your job. This is your number one costs him like a to do it yourself. But these are kind of the building blocks of starting to do it by yourself and kind of steer the ship on your own. But you kind of are talking about a little bit so people ask a high paid professional making over 200 $300,000 a year, how come I can’t get these passive losses are pals for short and offset my active that’d be to salary that I chose supposed to eat them down? What’s the deal, man?

Yeah, well, the most simple way to explain it is that your W two business income, capital gains, stock sales, interest, dividend income, all of that income is considered non passive. So if I go out and create a passive loss, I can’t net my passive losses against my non passive losses. So my goal then should be to re characterize my passive losses as non passive. And there’s quite a number of ways that you can go about that one of which I just described is especially affecting those that are investing in syndications. But that needs to be the goal at the end of the day is how do I re characterize my passive losses as non passive if I’m trying to offset my other non passive income?

And one of the big strategies that we like to use, if that’s possible, is the real estate professional status that any breakdown that I don’t know what we’d call it, but that it’s like a two part test, right? there’s kind of two things that they need to qualify for.

Yes, yeah, two steps toward tests. And then the third hurdle that you have to get over. So the first two tests, you have to spend 750 personal service hours in the Real Property trader business in which you materially participate, personal service hours, real property, trader business, material participation, 750 hours, the second,

let’s let’s break that one down real quick. So that means being an LP and five syndication deals does not work, because you’re not you’re not a managing member. But what are a couple of examples that you see, like you mentioned, a few rental properties is that work?

It will. So let’s talk about that syndication investment. So it’s 750 personal service hours a real property trader business in which you materially participate. Now the syndication is going to qualify as a real property trader business, but you your personal service hours, if you think about the litmus test of a personal service, our what that really means is or the litmus test for it is, if I did not log the time that I’m logging, or if I did not spend the time that I’m spending on this activity, the activity would fail the operation, the day to day operations would cease. If you’re a limited partner, investors in your personal service hours are not going to affect the underlying deal. So therefore, we’re automatically out. But then we’re also not materially participating as a limited partner, there’s just no way that we can. So whenever we invest in limited partnership stakes, or syndications, as a limited partner, we’re not able to hit personal service hours for material patients. So we’re trying to hit 750 personal service hours, and real arbitrators in which we materially participate. We’re already out because none of the hours that we log against that activity will actually count towards that 750 hour test.

And another thing that we will just leave as a teaser for now is becoming us all part of that general partnership and being an active participation in there get we can we’ll talk about that more next week when you come in, join us on the mastermind call. But that’s more of an inner circle type of activity. But what about for moving on to rental properties? Somebody just owns a few of them?

Yeah, well, so that second test that second statutory test for real estate profession, statuses spending more than half your time in real estate than you do anywhere else, which could, we will kick out the W two people and business people to be working part time or not at all, in order to hit that second test. So assuming that you can hit both of those tests, 750 hours, and more than half the time, the next hurdle is to materially participate in my rental portfolio. And the the issue that we run into or is typically, it’s typically not gonna be an issue for landlords if you if landlording is your only real estate activity, and whether your landlord in large projects or single family homes, if that’s your only activity, you typically don’t have to worry about the material visitation tests, because you’re going to hit them to visitation on your way to 750 hours. But if you are a real estate agent, then you’re not materially participating in your rental portfolio, but you at the same time can still be a real estate professional because I as a real estate agent could spend 1500 hours brokering deals all day long. Well, that’s a real property, trader business. They are personal service hours, and I materially participate. So I meet test one 750 hours. And by spending 1500 hours during the year, that indicates that it’s my full time job. So I also meet test too. So I’m a real estate professional as a real estate agent. But what if I forget to also material materially participate in my rental portfolio, then my rental losses are still passive. So what we’d like to see is pretty significant participation by either you or your spouse in the rental portfolio itself, in order to hit those material participation pass, or you do the landlording full time, that’s all you do.

And that was that’s a big misnomer, right? Because people think, oh, I’ll just have my spouse get a real estate license. So then just sell one house a year or something like that. It does not gonna work. Not gonna work. Yeah. Yeah. Another other thoughts are that I think for more of a credit investors listen to his podcasts. It’s like, Is it worth it to buy three crappy houses and be the landlord and get real professional status? Well, in my opinion, unless your AGI is over 300,000, in probably a year, you’re not paying too much taxes? Let’s be honest, it may not be worth it.

Oh, we have a progressive system. Right. So I think 300 K, I think the 24% tax bracket goes up to $317,000. If you’re married filing joint, so only after 317. Are you taxed at what’s the next 130 2%? So if you’re in like 30 to 3537. Okay, yeah, we want to get creative here and try to mitigate but but it’s also similar conversation to what I’ve been had with a lot of clients and cares Act came out. Everybody wants these big net operating losses. And so they’re like, how much real estate Should I buy to create a non passive loss that wipes out all of my income and increase the net net operating loss that I can then carry back five years? Because that sounds cool. And like, Well, sure, but 100 and whatever $15,000 of this real estate loss that you have is only going to save you 10 to 12% per dollar. So to what extent do we want to create this loss, like we want to maximize the savings, so we might not want to create a huge loss in one year, we might want to space it out. So we stay in that 35 37% range? Yeah,

just to kind of highlight that for people. If you’re making over $300,000 a year real estate professional status is definitely something you should be looking at. I mean, there’s wonderful things that can come with this, right? Yeah, one spouse being a lot of money, one that isn’t perfect, that person can stay at home, take care of the family more. And actually, at the end of the day, the net on the financial statement is better. Because you’re enacting this strategy. And if you’re I would say, if you’re under 100, maybe even $200,000 of AGI this stuff isn’t probably for you, which is why this is accredited investor mastermind Today the topic. But I think for the lower net worth, guys, the lower income guys, it’s Can you still take 25 grand of passive losses off of like, if you’re making under 100? Was 100 150, or something like that? Yeah, we get gifts, some of the lower the lower income guy something.


Yeah. And I think that if you’re in the 22, to 24%, tax bracket, these these losses are still beneficial to a degree in for married filing joint, you drop into the 12% tax bracket, you earn less than $80,200. So that’s that 22% threshold. And 24%, I said was 115. But that’s actually 171. So between 80,000 and $171,000, by married filing joint, I’m getting taxed at 22% after 171 K, now I’m being taxed 24%. So if you’re in that threshold, I still think that it’s potentially applicable. But to answer your question, specifically, if you’re earning less than $100,000, you have what they call a $25,000 passive loss allowance that you can claim, you have to be actively participating, you also have to own 10% of the activity. active participation just means management decisions are much lower bar than real estate professional status than material participation, you have to worry about all that, if you’re earning less than 100, you get a full $25,000 passive loss allowance. As you scale up to 150 k in earnings, that $25,000 passable, passive loss allowance phases out, it phases out $1 for every $2 above 100 K. So if I earn $110,000, I phased out $5,000 of the passive loss allowance and half of whatever my income is above 100, is how you calculate that. And so there’s some strategies here, the first strategy is to manage my income. If I’m in that, in that area, how do that I can max out my 401k contributions, we’ve had people at 150 K, contribute the full 401k contributions of 19,000. And whatever that is, in 2020, make that full contribution, drop your income, your modified adjusted gross income down to 141. And now you’ve just unlocked 90 $500 of that passive loss allowance that you can then claim. And that 90 $500 passive loss allowance then yields another $2,000, assuming taxing for you. So all of a sudden, my $19,000 contribution, my 401k saves me a lot more money than it would otherwise because it unlocks some of this passive loss allowance that I’m able to claim. So if you’re less than 100 K, you get a $25,000 passive loss allowance. If you’re more than 100 K, that starts phasing out. And once you reach $150,000, you’re 25,000 passive loss allowance has been paid down to zero dollars.

And I think like most I don’t know about most, but a lot of CPAs, especially the more conservative ones will definitely say yeah, you’re not active manager, they’ll tonight kind of fight you on that claim. So you as an investor need to kind of know what the rules are to get what you’re looking for. Because if not, they’re not going to check the box for you. And this topic comes up a lot, right? Like their CPA says, Well, are you actively participating? And they’re like, well, you have a property manager. So they say you’re not?

Hmm, yeah, you can be actively participating with a property manager, you might not be materially participating if you have a property manager. But those are two separate tests.

Right? material participating, like you said, is for real estate professional status, but for what we’re talking about right here is just active participating. And you’re you’re making the shots, somebody else is doing your dirty work, but you’re calling the shots.


And but like just using an example, this is kind of tax time right now, this is tax time for everybody who is more of a sophisticated investor, that actually files in October, like once you get your return back, this is the stuff you should be checking, right that they they maximize that $25,000 if you have the passive losses, if you’re under that threshold, so this is where you would have to kind of keep that in check and kind of drive the ship. But I’m sure that it just does it does it automatically.

We trained our staff and try to do that automatically. We do make mistakes. I think everybody makes mistakes, especially when you’re trying to crank through tax returns leading up to the deadline but for the most part, we get it right we ask you questions.

Yeah. And I know you guys you kind of share my the same sentiment as me is like you’d like to work with good clients, right that know this stuff as opposed to walking in a meeting with a client and then They are asking you why blue ocean questions? What should I do Brandon, those, those are bad clients to work with. Like, you want them to kind of know this stuff. And that kind of you can work collaboratively with them and see what you guys can create.

Yeah, absolutely well, and that’s kind of my my new mission is to educate investors across the country and empower them to have better conversations with their own advisors. So we’ve been like focused on a lot of educational content recently, to help facilitate that it’s been going pretty well.

So just to kind of wrap things up, things that you’re seeing in the the stimulus plan, I think we’re recording this in October before the election. But what do you what are you kind of excited that might happen to be on the lookout for Trump’s taxes?

So the new stimulus plan, not a whole lot in there for real estate investors or the real estate investors should be aware from a tax perspective, obviously, they have all the eviction moratoriums, and definitely get up to speed on. But going forward, right now we have this big payroll tax deferral that nobody’s using, that I’m aware of. If the republicans win in November, the thought is that they will make that that payroll tax deferral permanent next year, that’s the thought that’s a that is a prediction, I can’t confirm that that will or will not happen. But that is something that they have promised, if they win. On the flip side, if the democratic party wins in November, then we’re going to, we will most likely see a lot of changes related to the tax code, we’ll probably see some 2017 tax cuts and jobs act provisions rolled back, we might see the elimination of the step of basis rules, whenever you pass away and you pass real estate on to heirs. They get to inherit the property at the fair market value, they can start depreciation all over that wipe out all the gains all the depreciation recapture. So that could potentially go away. And then 1031 exchanges are being challenged again, but I don’t think that I would expect in 31 exchanges to stay within the code and not actually be pushed out.

Yeah, I’m a big advocate for like, I don’t really care about the 1031 exchange let them have it. I mean, with bonus depreciation, that’s what I really care about. Right now the sunset it starts at what 2022 or something like that starts to step down. And phase out. You think that’s going to be going away or extending gym bonus depreciation? Yeah, with the heavy with the cost segregation to bonus depreciation.

Yes, bonus depreciation is going to start being phased out in 2022 or in 2023, it drops to 80% and then the next year 60 then 40, then 20 and zero so I would expect at some point Congress to reconvene on that and try to figure out if they want to keep it or not bonus appreciate has been around for a while whenever it sunsets it gets extended we might see similar treatment again

Yeah, and when you seen Democratic or Republican Party you’re meeting the senate right so that people okay, clear. Yeah, presidential just a figurehead. Yeah, but yeah, I want you to give her contact information folks get a hold of you and yeah, thanks for coming on.

You had a problem you can contact me at we’ve got a lot of educational content on there, that real estate professional status, we have a 12,000 word guide on exactly how it works for with Internal Revenue Code citations and Tax Court cases that we’re not seeing you. There’s a lot of bad content out there on real estate professional status. So we decided to set the record straight so check that out. That’s all on our website. Again, that’s

and I’ll put on all these resources including this video a bit, that’s slash tax. And if you guys want to join our mastermind, check it out. It’s Brandon’s gonna be in there I think next week Monday answering all my more devious questions on tax and different ideas I have that we kind of talked about in our little cave works ourselves. So Alright guys, we’ll talk to you guys later right this website offers very general information concerning real estate for investment purposes every investor situation is unique always seek the services of licensed third party appraisers inspectors to verify the value and condition of any property you intend to purchase. Use the services of professional title and escrow companies and licensed tax investment and or legal advisor before relying on any information contained herein information is not guaranteed as an every investment there is risk. The content found here is just my opinion and things change and I reserve the right to change my mind. Above all else, do your own analysis and think for yourself because in the end, you’re the only person who is going to look out for your best interests.