Agent

No pro-ration if spouse doesn’t meet home occupancy test

Question on capital gain rule for home sale
Published on Dec 22, 2005

DEAR BOB: Regarding the capital gain $250,000 exclusion on the sale of a primary residence under Internal Revenue Code 121, I am aware there is a partial exclusion if the seller doesn't quite meet the 24-month occupancy test. However, I have owned and lived in my home for several years, but my spouse has only lived here one year. Is his exclusion pro-rated? – Mary DiG. DEAR MARY: No. You, as the qualified owner-occupant spouse, get the full $250,000 principal residence sale exemption of IRC 121. However, if your spouse doesn't meet the 24-month minimum occupancy test, there is no provision in IRC 121 for a partial second exemption. To qualify for a full $250,000 exemption, your spouse must occupy the principal residence at least 24 months before its sale. There's probably a very good reason. If all a single homeowner had to do was get married and move his or her new spouse into the home to get another $250,000 exemption (or at least part of it), there would be a long line at the ...

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