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Installment Sales

March 20, 2013

Planning benefits of installment sales

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Installment sales are a powerful tool in the real estate tax planning arsenal. Here are four ways that installment sales can be used to your advantage: (1) a seller postpones paying tax on a portion of the taxable gain from selling property until cash is collected, roughly matching the requirement to pay income taxes with the receipt of cash; (2) interest income can be collected on amounts that otherwise would have been paid as taxes; (3) an installment sale to a family member is an effective way to 'freeze' the value of an asset for estate planning and income-shifting; (4) income from a qualifying sale can be spread over many years to avoid exceeding income thresholds for higher income tax rates, the Medicare surtax and phaseouts of deductions and credits.

Starting in 2013, the 3.8% Medicare surtax applies to investment income when married persons filing joint returns have adjusted gross income exceeding $250,000 and singles have adjusted gross income exceeding $200,000.

Under the American Taxpayer Relief Act of 2012, also known as the 'fiscal cliff' tax legislation, the maximum 39.6% federal income tax rate for ordinary income applies when married persons who file joint income tax returns have taxable income exceeding $450,000, heads of household have taxable income exceeding $425,000, and other single taxpayers have taxable income exceeding $400,000. The same thresholds apply for an increase in the maximum federal income tax rate for qualified dividends and long-term capital gains from 15% to 20%. Phaseouts also apply to personal exemptions and itemized deductions for married persons filing joint income tax returns with adjusted gross income exceeding $300,000, $275,000 for heads of households and $250,000 for other singles.

These additional income taxes at various thresholds will provide an incentive for taxpayers to seek to defer income to avoid reaching the thresholds.

What is an installment sale?

An installment sale is a disposition of property where at least one payment is to be received after the close of the taxable year in which the disposition occurs.

Certain items treated as cash received in the year of sale

Notes payable on demand and bonds that are readily tradable on a securities market that are received as consideration for a sale of real estate are treated as cash when received.¹

What property isn't eligible for installment sale reporting?

Inventoriable personal property isn't eligible for installment sale reporting. This applies to businesses that sell products. For example, a department store can't report merchandise sales for which it carries open accounts receivable from customers using the installment method.

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Sales of marketable securities aren't eligible for installment sale reporting.

More pertinent to real estate sales, 'dealer dispositions' don't qualify. A dealer disposition of real property is any disposition of real property which is held by the taxpayer for sale to customers in the ordinary course of the taxpayer's trade or business. For example, sales of homes in a housing development don't qualify for installment sale reporting. If a taxpayer regularly buys 'fixer upper' homes, rehabilitates them and sells them without renting them for a period of time, he or she probably has a trade or business of rehabilitating homes and will not be eligible for installment sale reporting.

There are exceptions to 'dealer disposition' sales for property used or produced in the trade or business of farming and for timeshares and residential lots. There is an interest charge paid to the IRS for these sales.² The interest is shown as an additional tax on the income tax return, but may be eligible for a tax deduction as interest expense.³

How is the election made?

If real estate or a casual sale of personal property is made with a payment received after the year of sale, installment sale reporting applies by default. A taxpayer may elect not to report an installment sale using the installment method. The election out is made by reporting the full amount of the selling price, including the face amount of the installment obligation, on the tax return filed for the taxable year in which the installment sale occurs filed on or before the due date, including extensions, of the taxpayer's tax return for that taxable year.

Late elections or revocations of elections are only permitted with the consent of the IRS.

Installment sales are reported on Federal Form 6252. You can get a copy at www.irs.gov.

Why elect to not use the installment method?

A good reason to elect out of installment sale reporting is when you have capital losses to partially or completely eliminate the capital gain.

Ordinary income from depreciation recapture isn't eligible for installment sale reporting

Ordinary income from depreciation recapture, principally under Internal Revenue Code Section 1245, is not eligible for installment sale reporting.⁴ This income is taxable in the year of sale. It is entered at line 12 on 2012 Form 6252 (Installment Sale Income). Any additional section 1231 gain or capital gain is eligible for installment sale reporting.

Income subject to highest rate is taxed first

Section 1231 gains and losses from installment sales of business or rental property are netted on 2012 Form 4797, line 4. If a net gain results and any nonrecaptured Section 1231 losses from prior years at line 8 don't recharacterize the balance of the gain to ordinary income, the balance is carried forward (for individuals) to line 11 on 2012 Schedule D.

A computation is made on the Unrecaptured Section 1250 Gain Worksheet in the instructions for 2012 Schedule D to determine if any of the gain is subject to the special 25% tax rate for long-term capital gains.⁵ This computation will result in the long-term capital gain subject to the 25% special tax rate being taxed first. The amount subject to the special rate from the Worksheet is carried to line

Interest Free Installment Renovation