DEAR BENNY: My parents are both deceased — mom died in 1999; dad passed in 2004. Their house now belongs to my brother and me, and my brother moved into the house in 2007. He is supposed to go to the bank soon and get a loan to purchase my interest in the house for $103,500, which is the amount we have agreed on.
I have been told by one tax preparer (not a tax lawyer) that I will not have to pay taxes on the amount because it will be an inheritance, but a loan officer at my credit union advised me that she thinks I will have to pay taxes.
I’d like your opinion on this. Please don’t tell me to see a tax lawyer (I hate lawyers; they don’t always help you and they drag their feet and charge you a bundle. This has been my experience with lawyers in the past, and I cannot stand the thought of having to go to another one! –Clara
DEAR CLARA: I am a lawyer and understand your concerns. However, I can assure you that all attorneys are not as bad as you think.
My first question: Did you (or your brother) probate your dad’s estate. If not, you should do so immediately. Otherwise, whether you or a stranger try to buy the house, you will find that the title company (called escrow companies in some Western states) will tell you that you do not have proper title.
Assuming that you did probate the house, let’s assume the property was worth $200,000 on the date your dad died in 2004. You and your brother get what is known as the stepped-up basis — in other words, your tax basis is the value of the property when your dad died.
Tax basis is what the Internal Revenue Service looks at when determining if a home seller has made a profit. If the value was $200,000 when your dad died, your tax basis is $100,000 and your brother’s is the same.
If your brother buys the house at $103,500, and assuming that you did not make any improvements to the house, you will have made a profit of $3,500 ($103,500 minus your basis of $100,000).
So, in my example, for tax purposes you will have made a small profit, and will have to pay capital gains tax on that profit. The current federal tax rate is 15 percent (depending on your income) so you may have to pay $525 plus any local or state capital gains tax.
You don’t have to go to a lawyer to assist you, but you should talk to a professional accountant, as you may have to pay a tax.
DEAR BENNY: My adult daughter, a veterinarian, and her husband who is employed, live in a very unusual house. They have owned this home for several years. They have good credit and payment history. The house was built in the 1930s and consists of four circular brick interconnected "yurt style" modules. It has been maintained and modernized, and is in good condition. It is located in a neighborhood of houses ranging from fairly modern ranches to older Victorians.
They contacted the mortgage company that originally financed the house to discuss refinancing to a better rate. They were told that due to the unique style of the house, it was not possible to come up with comparables for the assessment.
My questions are: First, is this strictly legal? There is equity and payment history and they are not seeking additional funds. Second, if this is legal what would your advice be to them? –Dave
DEAR DAVE: First, I had to learn what a "yurt style" house looks like. From my research, its origination is what Central Asian nomads have lived in for centuries.
I cannot believe that some competent appraiser cannot come up with a market value of the house. I talked with one appraiser in my area and she told me that there are courses given to appraisers on "unique houses," and clearly your daughter’s house is unique.
This is especially a concern because the lender you are asking for a refinance loan did the original loan in the first place.
I think that the lender just does not want to get involved. My suggestion is to contact an appraiser on your own and see what he comes up with. I also suggest that your daughter consider looking for another lender.
She and her husband have good credit, so they clearly should be able to find a lender willing to refinance their current loan.
DEAR BENNY: A friend of mine bought a condo a little over a year ago. The builder recently went bankrupt and his bank sold the balance of one unsold building, and two units remaining in my friend’s building and the adjacent property. The 10 owners who occupy 10 of the 12 units in his building are of mixed races and incomes. All of the original owners are stunned and extremely upset at what has taken place. No one contacted them until after the bank made the sale.
The current owners did not buy their condos to have families with lots of children move in and disrupt their quiet lives. They are fearful that there will be no control over who rents these units and are concerned about drugs and crime. Their property values have probably declined and may not be salable at least not for the market value they paid.
My question is: How can a bank get away with selling the remaining units and properties to HUD who will use them as subsidized rentals without the cooperation and knowledge of the existing owners and why wasn’t the bank held to the rules of the condominium and instead required to sell the units to private buyers? –Sherry
DEAR SHERRY: I will try to be politically correct in my answer, but I suspect that there is some racial prejudice involved in your question. You do not know if these new owners will or won’t be good neighbors. Has your friend — and the other original owners — met the new owners? Is there anything in the condo bylaws that prohibits owners to have children?
While the bank should have discussed the situation with the original owners before entering into a contact with HUD, I see no reason why they are legally obligated to do so.
If these new owners start to violate the rules and regulations of the condo association, the board should pursue legal action against them — the same as if any of the original owners were violating the legal documents.
When your friend bought into the condo, he did not know who would be his neighbors. His next-door neighbor could have turned out great — or bad. It’s community association living: You give up a bit of your privacy for the benefit of the entire association — right or wrong.
My suggestion is to wait and see how these new owners will behave. Don’t rush to judgment at this early stage.
DEAR BENNY: My mother is 80 years old. She bought her home in 1994. She wants to give me the house outright, and wants her name off of the deed. What is the easiest way and how should we go about it? –Tom
DEAR TOM: This is a question I often get, and always have the same answer. There may be tax consequences for both of you if your mother gives you the house.
I don’t know your specifics, so my response must be general in nature. Let’s say she bought the house for $50,000, and it is now worth $200,000. If she gives you the house, her basis for tax purposes becomes yours. Basis is the way to determine profit or loss.
If you will own and live in the house for two years out of the five years before you sell it, you can exclude up to $250,000 of gain (or if you are married and file a joint tax return, the exclusion is up to $500,000. Your spouse does not have to be on title, but must have lived in the house for two out of the five years.)
But if you do not qualify for this exclusion, when you sell, you will have made a profit. Your basis will now be $50,000 (i.e., yours and your mother’s combined), so the difference between basis and selling price is taxable. (I am ignoring for this discussion any improvements you or your mother made, or such expenses as any real estate commissions.) The current federal tax rate is 15 percent, plus any state or local tax.
However, if you inherit the house on your mother’s death, you will get a "stepped-up" basis. That means the value of the house on her death becomes your basis. If the house is worth $250,000 when she dies, and you sell for that price, you will have made no gain — and thus no tax to pay.
Additionally, your mother may have gift tax issues. Please talk to a professional (lawyer or accountant) before you take title to the house.
Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to firstname.lastname@example.org.
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