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June 5, 2019
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Sale of home after multiple periods or rental and main residence

  • June 5, 2019
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I have owned my home for five years. Initially I rented it then used as my residence for three different periods. The total number of days l lived in the home total more than 730 days. An example is 200 days as my residence followed by renting 365 days then my residence again for 200 days followed by another rental period of 300 days then my residence again for 365 days. The total is over two years as my residence during this five year period. I lived outside the USA during the time I rented the home. Would this be considered qualified use of the home for the capital gains exclusion? I owned no other home during this period

Best answer by Opus 17

Let me try and clarify.

The exclusion is for homeowners who use the home as their primary residence.  As long as you live in the home at least two years, you can exclude up to $250,000 or $500,000 of the gain.  You are also allowed to rent the home for up to 3 years after you move out before you sell.  If you rent longer than 3 years, you are treated as a landlord and not allowed to exclude any gain.

The qualified use rule was set up to prevent landlords avoiding capital gains tax by moving back into their own rental property for 2 years before selling.  So periods of ownership before it was your residence are non-qualified.  Also, moving out then moving back in creates a non-qualified period.  If you rented for 8 years and moved back in for 2 years, then only 20% of your gain is qualified.   But all the times you lived in the home as your personal home are qualified, so someone who rented for 1year, then lived there 4 years, then rented for 1 year, then lived there 4 years, would be able to exclude 80% of their gain.   Qualified period include times when you move out before selling as long as you don't move back, and as long as you still meet the 2 year/5 year rule.  So if you rented for 1 year, lived there 4, rented for 1, lived there 3, rented for 1, and sold, you would still have 8 qualified years of the 10 total.

This is unfortunately not spelled out in the current version of IRS publication 523 on selling your home.  Pub 523 from 10 years ago did a better job if you can find it online.  TurboTax does include the calculation but you may need to manually supply the number of non-qualified days of ownership. 

In your case, you must first meet the 2 years in the last 5 year rule to qualify for any exclusion (which you do).  Then, to figure out how much gain you can exclude, you must add up all your qualified and non-qualified use for the entire length of your ownership.  If you owned the home for 1915 days and it was your residence for 732 days then you can exclude 38.2% of your gain (up to $250,000 or $500,000) and you will owe capital gains tax on 61.8% of your gain.   The gain due to depreciation will be taxed at a flat 25% and the rest will be taxed at 15% (for most taxpayers).

If you were to live in the house for one more year, you could exclude 1097/2271 or 48% of your gain.  Your qualified percent would increase the longer you lived there as your personal residence.

It's not just the first rental that creates the qualified/non-qualified use issue.   Any period of rental that ends with you moving back is non-qualified, because it makes you look like a landlord/property investor.  The only rental use that qualifies you for the exclusion is when you move out of your personal home and sell it within 3 years, because that makes you look like a homeowner who used a short rental period to manage their move better.   

26 replies

jeffo45Author
June 5, 2019
Bill, is the non qualified use due to renting the home before I lived in it or renting multiple times?
Employee
June 5, 2019
It is from renting it before you lived in it.

This doesn't apply to you, but for any future readers of this thread, Nonqualified Use only happens for rental periods (or any other time period when it was not your Principal Residence) after 2008.  Periods before 2009 do not count towards Nonqualified Use.
Employee
June 5, 2019
One more clarification for any future readers of this post:  Let's say you now rented it out for another 100 days, then sold it.  That extra 100 days is NOT Nonqualified Use because you did not live in it afterwards.  So in that hypothetical situation, you would use 832 days of use, divided by 2015 days of ownership, and be able to exclude 41.3% of the Gain (not counting depreciation).

Of course in that situation, you might not even meet the 2 year rule, in which case you wouldn't be able to exclude any of the gain.
jeffo45Author
June 5, 2019
So the one year period I rented the home after I purchased it and before I moved into it causes me to lose the exemption due to this being unqualified use? Also with the calculation going out past 925 days from the date of purchase is not inside the last five years...confusing
Employee
June 5, 2019
The Exclusion is meant for homes that are your Principal Residence.  The Nonqualified Use rule basically prorates the exclusion so it only applies to the time it was your Principal Residence.

Yes, there is a bit of a 'loophole' that if you rent it out AFTER you live in it (and DON'T move back in), it avoids the Nonqualified Use rule.  But the general rule is that it is meant to only exclude the gain based on the time it was your Principal Residence.
August 23, 2019

Hello, would you please answer a question for me about this? We had to leave our primary residence in CO in 2012 due to a job layoff and my husband could only get a job in CA. So, we had to pack up and move and our primary residence in CO became a rental. We have not lived in it at all in the past 5 years. It has been a rental the whole time. Are we allowed any exclusions on Capital Gains due to the fact that my husband lost his job and we were forced to move out of state unexpectedly?

Thank you in advance for any help you can offer. 

~Connie

Critter
Employee
August 24, 2019

Sorry no ... there is no exception for your situation ... you will sell it as a rental and recapture the depreciation and pay cap gains taxes on it. 

Employee
June 5, 2019
After looking at the rules again, I have another question:  WHY did you move back and forth?
jeffo45Author
June 5, 2019
OK. So say I keep it as my residence for a contiguous two year period from the last time I moved in would that be also non-qualified? Should I rent it for 6 months then sell it to get this loophole?
jeffo45Author
June 5, 2019
I purchased the home while living overseas. The person who was living in it continued living in the home as my tenant until I was ready to move into it, basically 11 months. Living in the home as my residence and leaving was not planned but it happened and due to security issues in the country where I was transitioning back and forth from it just worked out that way. I am getting the 732 days by adding up the personal use days on schedule E. This was intended in every way to be my main residence.
Employee
June 5, 2019
Renting it out for 6 months now would make those 6 month qualified use, but it would NOT change any previous Nonqualified Use.

You can't get out of the fact that those first 11 months were Nonqualified Use.

For the other rental period, it is POSSIBLE it could qualify for qualified use.  This provision makes a period NOT Nonqualified Use: "period of temporary absence (not to exceed an aggregate period of 2 years) due to change of employment, health conditions, or such other unforeseen circumstances as may be specified by the Secretary"

So depending on EXACTLY why you rented it for that second time, it is POSSIBLE that you had "unforeseen circumstances as may be specified by the Secretary".  *IF* that is the case, that second rental period would NOT be Nonqualified Use.  Only the first rental period would be Nonqualified Use.  *IF* you think that COULD be the case, you may want to go to an experienced tax professional to research if your circumstances would qualify as "unforeseen circumstances as may be specified by the Secretary".
jeffo45Author
June 5, 2019
Yes I read that and it is loosely defined. Not to put personal information on a public forum but I could probably justify the reason why I rented it out the second time. I did talk to a 'tax preparer' at one time and mentioned the adding of the total time that I will have resided in the home as my primary residence. FYI the reason for the initial rental period before taking occupancy was while waiting for my wife's spousal visa which took over a one year. Complicated to say the very least