Implications of the 1993 Tax Act for real estate investments.
The act's effect pales in comparison to the sweeping changes passed in 1981 and their reversal in 1986. The 1981 act drastically shortened the depreciable life to 15 years for real estate purchased after 1980 and allowed accelerated depreciation for such property, regardless of its use or age.(3) These provisions of the 1981 tax act triggered a scramble to buy or build real estate as a tax shelter, often without regard for the nontax economics of the situation. The 1981 tax act set off an unprecedented building boom and promoted the rise in popularity of the limited partnership form of ownership, which allows the pass-through of tax losses to underlying owners (real estate investment trusts [REITs] cannot do so). The 15-year life was lengthened(4) to 18 and then 19 years, but this failed to dampen investors' appetite for real estate at that time.
The 1986 tax act, however, reversed the 1981 tax act.(5) For all newly purchased real estate, it required straight-line depreciation over a 31.5-year period (27.5 for residential rental property). It characterized income from rental real estate as inherently "passive" and prohibited tax losses received from passive sources from offsetting other forms of income(6) (a punitive measure, though it provided limited relief from this provision for small real estate owner/operators). Consequently, the 1986 tax act was thought to put a brake on proposed projects and cause a dramatic drop in real estate values. No longer could real estate be purchased for artificial reasons (i.e., as a tax shelter generated by a paper loss for tax depreciation), as there would be no tax shelter resulting from the ownership of real estate.(7)
The 1993 act lengthens the life for depreciation of nonresidential real estate to 39 years for acquisitions after May 13, 1993,(8) though many investors will prefer to use 40 years to avoid the minimum tax and its computations.(9) The act leaves nonresidential real estate depreciation at 27.5 years. Beginning in 1994, it frees most real estate professionals from passive activity loss suspension requirements.(10) The act provides other changes affecting real estate that are important in special situations. It offers incentives to acquire affordable housing in the form of low-income housing credits,(11) liberalizing pension fund investment in real estate(12) and allowing taxpayers (other than Sub-chapter C [regular] corporations) to elect to defer phantom income from workouts (certain income from the discharge of qualified real property business indebtedness).(13) It provides a change in partnership redemptions in most industries, including real estate.(14) Finally, it makes permanent the authority for state and local governments to issue mortgage revenue bonds and mortgage credit certificates.(15)
WINNERS AND LOSERS
An educated analysis allows us to determine the biggest winners and losers as a result of the 1993 tax act. This may be done simply by considering what the changes are, what parties are affected, and whether they are positively or negatively affected. From this qualitative analysis, a quantitative analysis can be applied to determine the extent of the effect, using simulations.
Basic changes, as noted previously, are:
1. Lengthened depreciable lives for real estate (except residential rental property such as apartments, which remain at the same depreciable life)
2. Freedom from passive loss provisions for real estate professionals
3. Higher tax brackets for those with higher income levels
The biggest winner would be the group that benefits from all three of these conditions (or is not injured by any change). This would be a real estate professional who owns apartments generating tax losses. Those losses are not diminished by the adverse depreciation change (the first condition mentioned does not affect apartments). Real estate professionals are no longer subject to passive activity losses (the second condition), so they can now offset the losses against other income. Without the newly introduced offset, the other income would be taxed at higher rates (the third condition). Thus, how high-bracket real estate professionals fare under both the pre- and post-1993 law is considered here.
The effect of the act is neutral for many non-real estate professionals who purchase nonresidential property. Their tax losses are smaller (or taxable income greater) from new purchases of real estate because of the lengthened depreciable life. Although they are still subject to passive loss rules, the loss is suspended to offset the gain on resale, as before. The tax law change is most adverse to taxpayers in a taxable income situation, who will pay more in taxes because of the higher brackets. This "loser" situation will be considered.
BENCHMARK EXAMPLE BEFORE 1993 CHANGE
The following example is simplified in that it eliminates the effect of mortgage amortization, and zeros have been truncated from the figures potentially generated by a reasonably sized investment to provide an example without obfuscation. During the early years of property ownership, mortgage amortization is slight and not an important factor in evaluating the change caused by new depreciable lives, the loss pass-through provision, or tax rates. In addition, for purposes of simplicity economic growth in income and value are not considered. Instead, a benchmark (normal) amount of rental income is considered level through the 10-year holding period. Both an elevated and a reduced income level are also simulated. The following familiar formula is applied:
[V.sub.0] = [summation of] [PW ATCF/[(1 + i).sup.n]] where n = 1 to n + TW AT reversion/[(1 + 1).sup.n] + mortgage principal
where n = Holding period
i = Discount rate for after-tax equity yield
PW = Present worth
ATCF = After-tax cash flow
AT reversion = After-tax reversion
Income-producing residential real estate is purchased for $1,000 with an $800-loan bearing interest only at 10% annually. The balance of the purchase price financially is $200 of equity paid in cash. Of the purchase price, $800 is allocated to the building, with the balance of the purchase price (paid for physical assets) considered non-depreciable land at $200. These values are further assumed to remain constant over a 10-year projected holding period.
Cash flow and taxable income
The benchmark at a normal rental level provides gross rental income of $166.67 annually, with operating expenses at 40% of gross income, leaving net operating income (NOI) of $100 annually. Subtracting $80 interest expense, before-tax cash flow is $20. Taxable income is reduced by depreciation, which is $29.09 using the 27.5-year life as allowed for a residential property before and after 1993. This provides an annual tax loss of $9.09, characterized as a passive activity loss (PAL), which is suspended for all noncorporate taxpayers under prior tax law until it can be offset by a passive income generator (PIG). Thus, prior to 1994, the $20 annual before-tax cash flow is the same as after-tax cash flow (see Tables 1 and 2).
It should be noted that Table 2 uses simple addition and subtraction. From the rental income given in Table 2, operating expenses at a 40% rate are subtracted. Interest expense (10% of an $800 loan) is also subtracted, to result in annual before-tax cash flow of $20. Depreciation is based on an $800 depreciable asset, over a term of 27.5 years allowed by tax law. The tax depreciation reduces taxable income, and is subtracted accordingly. The result is a taxable income or loss.
If the result is taxable income, a tax rate is applied to compute the tax. That tax is then subtracted from the before-tax cash flow. If taxable income is zero, there is no income tax in that year, so after-tax cash flow is the same as before-tax cash flow. If taxable income is negative, a tax saving could occur, usable currently or suspended depending on a number of other variables. When a tax saving occurs, it is added to before-tax cash flow to provide after-tax cash flow.
Before 1994, a tax loss was considered a PAL, which could be offset only against a PIG owned by the investor. That is, if the owner of a tax loss-producing property also owned one producing taxable income, the PAL could be used to offset a PIG, thereby reducing the investor's current tax liability. (There is a small-operator exemption for those with taxable income under $150,000 before deducting their PAL from nonproject taxable income. They may offset up to $25,000 of loss, provided they actively manage the property.)
TABLE 1 Benchmark Example: Capital Accounts
Building cost $ 800 Land cost 200
Total assets $1,000
Liabilities and Equity
Mortgage loon $ 800 Equity investment 200
Total liabilities and equity $1,000 TABLE 2 Benchmark Example: Operating Accounts (Cash Flow and Taxable Income)
Rental income $166.66
Less: Operating expenses -66.66 Less: Interest -80.00
Before-tax cash flow $ 20.00
Less: Depreciation for apartments $800/27.5 years 29.09
Taxable income [-loss] $ -9.09
For investors without a PIG and those who are not small operators, the property's tax loss is suspended. The suspended losses are released when the property begins to generate taxable income or is said at a gain. Then the suspended losses are used to offset the income or gain. After 1993, a "real estate professional" is not subject to the rule concerning suspension of PALs (but other investors continue to be).
To qualify for the exception [i.e., for the taxpayer to be considered a real estate professional], 1) more than one-half of the personal services performed in trades or business by the taxpayer during the tax year must involve real property trades or business in which the taxpayer materially participates, and 2) the taxpayer must perform more than 750 hours of service during the tax year in real property trades or businesses in which the taxpayer materially participates. These two requirements must be satisfied by one spouse if a joint return is filed. Assuming that the requirements for the exception are satisfied, the passive activity loss rules are applied as if each interest of the taxpayer in rental real estate is a separate activity unless the taxpayer elects to treat all interests in rental real estate as one activity.(16)
So a real estate professional after 1993 can add the current tax saving generated by a tax loss to the project's before-tax cash flow to derive after-tax cash flow.
Again, it should be noted in Table 2 that the property generates $20 of before-tax cash flow. Because of the non-cash deduction for depreciation, a tax loss of $9.09 is provided each year. This is from using the straight-line method and a 27.5-year life. This depreciation allowance was provided both before and after the 1993 tax act. The change, passed in 1993, provided that a real estate professional may offset that loss against other income currently, beginning in 1994.
Before that law change, real estate investors, whether real estate professionals or not, had to retain that loss in a "suspense" account, using it to offset future taxable income or gain from a sale. Thus from 1987 through 1993 suspended losses were generally of no current value to an investor. If taxable income were to be generated or the property were to sell at a taxable gain, the suspended losses would be released to offset such income.
Table 3 provides amounts of after-tax reversions for the benchmark property, assuming that there is no change in the value of the property over the holding period and no mortgage amortization. Table 3 is based on the pre-1993 law, and it continues to apply for non-real estate professionals after 1993.
Table 4 shows present values of after-tax returns to the equity owner at a 10% discount rate. This is the sum of the present value of after-tax cash flow and after-tax reversion. For example, at a 10% discount rate, the present value of $20 annual cash flow is $122.89. This can be replicated by using a hand-held calculator, with 10% = i, $20 = PMT, 10 = n; compute PV, which equals $122.89.
Similarly, the after-tax reversion is $144.00. Its present value is $55.52 at a 10% discount rate. Using a calculator, 10% = i, $144.00 = FV, 10 = n; compute PV, which equals $55.52.
After-tax Reversion for Benchmark Property
Cash from sale
Resale price in 10 years $1,000.00
Less: Mortgage debt (no amortization) -800.00
Before-tax resale proceeds (1) $ 200.00
Gain on sale
Resale price $1,000.00
Original cost 1,000.00
Less: Accumulated depreciation (10 years x $29.09/year) 290.90
Adjusted tax basis 709.10
Gain on sale $ 290.90
Tax on gain
Gain on sale $ 290.90
Losses suspended from Table 2, cumulated over ten years, then released to offset a gain -90.90
Net gain on sale 200.00
Tax on gain at 28% capital gains rate (2) $ 56.00
After-tax proceeds from sate
(1) Before-tax proceeds from sale $ 200.00
(2) Less: Tax on gain -56.00
Equals after-tax proceeds or reversion $ 144.00
Note: (1) and (2) are cross references.
The value of equity is therefore $178.41, composed of 10 years of $20 annual cash flow worth $122.89, plus a $144.00 reversion in 10 years, worth $55.52 currently. Both of these calculations are at a 10% discount rate. The result, shown in Table 4, serves as a benchmark for comparisons described later in this article.
BENCHMARK EXAMPLE AFTER 1993 CHANGE
As noted earlier, for taxable years that begin in 1994 a real estate professional can apply a tax loss from real estate to offset nonproject income. This provides two major changes to the previous benchmark example for a real estate professional.
1. The $9.09 annual tax loss (see Table 2) is not suspended. It can be used to save taxes currently. The highest tax bracket in 1994 is about 40%, so the current additional savings each year is $3.64. This savings is from reducing taxes that would otherwise be paid on non-project income: 40% x $9.09 = $3.64. To the annual before-tax cash flow of $20, another $3.64 is added, for an annual after-tax cash flow of $23.64.
The value of the cash flow for 10 years, discounted at 10%, is $145.25, which can be checked on a calculator: 10% = i, 10 = n, 23.64 = PMT; compute PV.
2. Taxes on a sale are increased because tax losses are used currently, rather than being suspended until a sale.
TABLE 4 Present Value of Equity for a Benchmark Property (before 1993)
10% Discount Rate for Equity Returns
Present value of after-tax cash flow $122.89
Present value of after-tax reversion 55.52
Present value of equity 178.41
Present investment value of property $978.41
As shown in Table 3, before-tax resale proceeds are $200. The gain is changed from Table 3 because there is no suspended loss. The gain is now $290.90, which requires a tax of $81.45 at 28% capital gains tax rate. So the after-tax resale proceeds are $118.55 ($200.00 minus $81.45 tax). The present value of the after-tax resale proceeds, when discounted at 10% for 10 years, is $45.70.
Table 5 offers the after-tax present values to equity for real estate professionals after 1993. From a comparison of Table 4 with Table 5, it can be seen that the investment value of the property improves from $978.41 to $990.95. This is slightly more than 1%. More noteworthy is the improvement in equity value, from $178.41 to $190.95, which is about a 7% gain in equity value.
For an appraiser, who is typically requested to estimate the full fee value, not just equity, the 1% investment value increase is not a significant issue and is not likely to be noticeable in the market.
In the preceding example, tax losses were not a major component of the investor's return. Other simulations were run in which before-tax cash flow was less than the benchmark, and accordingly, tax losses were greater. In simulations where before-tax cash flow was zero, the 1993 tax law change per se made a difference of less than 2% of property investment value. The difference in equity value was admittedly much greater, improved by almost 15%. When discount rates higher than the 10% used in the benchmark example are used to measure equity values, and at the higher tax rates brought by the 1993 tax act, the importance of current tax benefits is magnified. Still, in the extreme situations noted, the difference in property investment value attributable to the 1993 tax law change was a mere 3%.
TABLE 5 Present Value of Equity for a Benchmark Property(*) at Normal Rental Income Level (after 1993)(**)
10% Discount Rate for Equity Returns
Present value of after-tax cash flow $145.25
Present value of after-tax reversion 45.70
Present value of equity 190.95
Present investment value of property $990.95
* Residential property.
** Professional owner, 27.5-year life, 40% tax rate, 28% capital gains tax rate.
The 1993 tax act has a neutral effect on many non-real estate professionals who purchase nonresidential property in 1994 and after.
Consider the same benchmark capital accounts of Table 1. The same annual before-tax cash flow is generated, $20, as shown in Table 2. Depreciation is different, however. Before the 1993 act, tax depreciation for nonresidential property used a 31.5-year life. After the tax law change, it is 39 years, though use of 40 years may be preferred by many investors because it simplifies computations of the alternative minimum tax. For this article, a 40-year life is used.
So, before 1993 tax depreciation is $800 [divided by] 31.5 years, or $25.40 per year. This provides a tax loss of $5.40 per year (total deductible expenses exceed rental income by $5.40), which would be suspended for non-real estate professionals. (This is somewhat less than the $9.09 loss at a 27.5-year life allowed for apartments and described earlier.) The taxable gain on resale would be $254 ($1,000 resale price less the $746 adjusted tax basis), and the $254 gain is further reduced by the cumulated suspended losses. Those total $54 by the tenth year, resulting in a taxable gain upon sale of $200.
For purchases in 1993 and after, the tax depreciation would be $20 per year ($800 building divided by 40-year life), so total tax deductible expenses match rental income, offering no tax losses and no taxable income. That is, rent of $166.66 is exactly offset by this sum: operating expenses of $66.66, interest of $80, and depreciation of $20. Therefore, nothing is put in the PAL suspense account. The gain on resale is $200 (simply $1,000 resale price less $800 adjusted tax basis). There are no suspended losses to be released. The resulting after-tax cash flow and after-tax resale proceeds are the same as before the 1993 tax change. The difference in depreciable lives affected only the suspense account; the depreciable life change of the act does not affect after-tax cash flow or resale proceeds.
LOSER SITUATION: ELEVATED INCOME
To demonstrate the loser situation brought about by the 1993 tax change, it is necessary to find a more favorable revenue pattern than in the previous benchmark examples. Consider the elevated rental pattern in Table 6, which is greatly enhanced from Table 2.
Because there is no tax loss, the result applies to real estate professionals and nonprofessionals. There is more taxable income in the after-1993-change column, and a higher tax rate is applied, resulting in an $8.00 tax for the past-1993 simulation, versus a $5.15 annual tax in the pre-change situation. Consequently, the after-tax cash flow is reduced by the $2.85 difference in annual taxation.
No analysis is complete, however, without reflecting what occurs upon a sale. Assume a resale at $1,000 as in Table 7. The tax on resale differs by $15.10 ($71.10 minus $56.00 equals $15.10) because of depreciation.
After 1993, less tax depreciation is claimed, so the taxable gain on resale is less, and the tax is less in this past-1993 situation. The present values of these at a 10% discount rate for 10 years are shown in Table 8.
Table 9 offers the present investment value of amounts before and after the tax law change, with equity cash flows discounted at 10%.
TABLE 6 Operating Accounts: Elevated Rental
Before After 1993 1993 Change Change
Rental income $200.00 $200.00
Less: Operating expenses -80.00 -80.00
Less: Interest -80.00 -80.00
Before-tax cash flow (1) $ 40.00 $ 40.00
Less: Depreciation ($800 [divided by] 31.5 years) -25.40
Less: Depreciation ($800 [divided by] 40 years) -20.00
Taxable income $ 15.60 $ 20.00
Less: Tax (2) at 33% of income -5.15 40% of income -8.00
After-tax cash flow: (1) minus (2) $ 34.85 $ 32.00 TABLE 7 Resale at Pre-1993 and Post-1993 Tax Conditions
Before 1993 After 1993 Change Change
Cash from sale
Resale price $1,000.00 $1,000.00
Mortgage debt (no amortization) -800.00 -800.00
Before-tax resale proceeds (1) $ 200.00 $ 200.00
Gain on sale
Resale price (2) $1,000.00 $1,000.00
Original cost 1,000.00 1,000.00
Less: Depreciation $ 254.00 $ 200.00
Adjusted tax basis (3) $ 756.00 $ 800.00
Gain on sale: (2) minus (3) $ 254.00 $ 200.00
Tax on gain at 28% 71.10 56.00
After-tax resale proceeds:
(1) minus (4) $ 128.90 $ 144.00 TABLE 8 Present Value of After-Tax Cash Flow and Proceeds from Resale: Elevated Income
Before 1993 After 1993 Tax Tax Change Change
After-tax cash flow $ 34.85 $ 32.00
Present value of after-tax cash flow $214.14 $196.63
After-tax resale proceeds $128.88 $144.00
Present value of after-tax resale proceeds $ 49.69 $ 55.52 TABLE 9 Change in Investment Values: Elevated Income
Before 1993 After 1993 Tax Change Tax Change
Present value of after-tax cash flow $ 214.14 $ 196.63
Present value of after-tax reversion 49.69 55.52
Present value of equity 263.83 252.15
Mortgage 800.00 800.00
Present investment value of properly $1,063.83 $1,052.15
The difference in property investment value brought about by the tax change here is slightly more than 1%, a relatively small amount. Other simulations were run at higher equity yield rates, but the value difference at a 15% yield rate was only 1.3%. As for other simulations, the effect of the tax law change would hardly be measurable by an appraiser in the market. Although a number of simplifying assumptions were made here, they were for purposes of illustration and are not intended to skew results.
The 1993 tax act brought a number of changes affecting income-property owners. However, unlike the 1981 and 1986 tax acts, real estate appraisers may virtually ignore the 1993 changes, as they will hardly be noticeable in the market.
The largest change applies to real estate professionals who own depreciable residential property. For them, the depreciable life is unchanged by the act at 27.5 years, and the tax losses will be allowed to flow through. Because the tax benefits have greater value when the tax rate is higher, the property's investment value is increased, but the increase is slight. However, this is of no benefit to a nonprofessional investor. Consequently, the effect on market value will be minimal.
For a real estate professional at a normal income level, the ability to pass through losses is offset by the longer depreciable life for nonresidential property. At a reduced income level, the loss pass-through advantage combined with a higher tax rate is partially offset by the longer depreciable life, providing a 3% property value increase, at a maximum.
For the non-real estate professional, the tax changes have an effect only in an elevated rental situation (not normal or reduced income), and then the effect is negative, though at most only 1.3% of the property investment value.
Notwithstanding the effects demonstrated here, whether compared with prior tax changes affecting real estate or contrasted with 1993 tax act changes affecting other industries, the 1993 tax act is a comparative nonevent for real estate investors.
1. A 33% effective rate is used for purposes of discussion here. The 31% rate is increased to 32.5% for individuals and 34.3% for a family with two children because of the reduction in itemized deductions and phase-out of personal exemptions.
2. The highest effective rate becomes 40.8%, above the advertised 39.6%, because of the phase-out of itemized deductions. The personal exemption phase-out is effective at lower income levels.
3. The 18-year life applies to property placed in service March 16, 1984, through May 8, 1985; the 19-year life applies to May 9, 1985, through December 31, 1986. See Jack P. Friedman, The Economic Recovery Tax Act of 1981 as It Affects Real Estate Owners (College Station, Texas: Texas Real Estate Research Center, Texas A&M University, 1981).
4. Jack P. Friedman, Highlights of the 1984 Tax Reform Act as It Affects Real Estate (College Station, Texas: Texas Real Estate Research Center, Texas A&M University, 1985).
5. Jack P. Friedman, Tax Reform Act of 1986: Highlights that Affect Real Estate Investors (College Station, Texas: Texas Real Estate Research Center, Texas A&M University, 1986); and Jack P. Friedman, "Tax Ax Falls," and "Tax Reform, Tax Reversals," Real Estate Center Journal, v. 1, no. 2 (1987).
6. See Daniel S. Goldberg, "The Passive Activity Loss Rules: Planning Considerations, Techniques, and a Foray into Never-Never Land," The Journal of Real Estate Taxation (Fall 1987): 3-35; see also Alvin L. Arnold, Real Estate Investments After the Tax Reform Act of 1986 (Boston: Warren, Gorham & Lamont, 1987); and Jack P. Friedman, "Passive Losses Lost," Real Estate Center Journal, v. 2, no. 1 (1987). Hotels, motels, and other similar transient lodging facilities are one exception to this rule. Operating such a facility where "substantive services are provided" is not considered a rental activity.
7. See Jack P. Friedman, "Analyzing Returns from Income-Producing Property," Real Estate Accounting and Taxation (Summer 1988): 34-50. Under the provisions of the tax reform acts of 1984 and 1986, tax shelter practices are severely limited by the passive loss limitation rules, the at-risk rules, and the "original issue discount" and "imputed interest" rules. For a further discussion of these subjects, see Arnold, 8-10 and 36-40.
8. Revenue Reconciliation Act of 1993, Title XIII of the Omnibus Budget Reconciliation Act of 1993, Act Section 13151(a), amending Code Section 168(c).
9. See Robert H. Lipsey and William C. Withers, "Applying the New Alternative Minimum Tax to Real Estate," The Journal of Real Estate Taxation (Summer 1988): 35-50.
10. Revenue Reconciliation Act of 1993, Title XIII of the Omnibus Budget Reconciliation Act of 1993, Act Section 13143, adding Code Section 469(c)(7) and amending Code Sections 469(c)(2) and 469(i)(3)(E)(iv).
11. Ibid., Act Sections 13142(a)(1) and 13142(b)(1)-(5).
12. Ibid., Act Sections 13147(a) and 13149(a).
13. Ibid., Act Sections 13150(a)-(c).
14. Ibid., Act Section 13262.
15. Ibid., Act Sections 13141(a)-(d). These tax credit provisions are considered by some observers to be the only true tax shelters left for real estate investors after the Tax Reform Act of 1986. See Clarance C. Rose, "New Rules for the Low-Income Housing Tax Credit," Real Estate Finance (Fall 1990). Also, Richard S. Goldstein and Charles L. Edson, "The Tax Credit for Low-Income Housing," Real Estate Review (Summer 1987): 49-60.
16. Internal Revenue Code, Section 469(c)(7).
Jack P. Friedman, MAI, PhD, is a partner of the firm that carries his name in Dallas, Texas, where he practices as an appraiser, consultant, and expert witness. Previously he was the Laguarta Professor in the finance department at Texas A&M University, Senior Research Economist and Head of the Research Division at the Texas Real Estate Research Center, and a senior manager in the Roulac Group of Deloitte & Touche. A certified public accountant (CPA), he has written numerous books and articles.
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|Author:||Friedman, Jack P.|
|Date:||Jul 1, 1995|
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