Is buying a second home a wise tax strategy?

Homeowners aim to save big on sale of first home
By: Robert J. Bruss: Inman News
DEAR BOB: My wife and I bought a house in 1995 for $180,000. Since then, we have taken out home-improvement loans and now owe $320,000. Similar nearby houses sell for $600,000. In 2004, we bought our current home for $640,000 and rented out our former home. We have been told if we sell our first home within three years after buying our second home we won't owe any capital gains tax. Or should we try to sell it now although the local home sale market is a bit slow? -Manuel A.

DEAR MANUEL: You received incorrect tax information. Buying a replacement home is irrelevant. Also, the mortgage balance on your old home doesn't matter.

To qualify for the Internal Revenue Code 121 principal-residence-sale tax exemption up to $250,000 for a single person (up to $500,000 for a qualified married couple filing a joint tax return), you must have owned and occupied the home at least 24 of the last 60 months before its sale.

That means you have up to 36 months after moving out of your principal residence to claim your tax-free sale profits. If you rent it longer than 36 months, you lose your exemption.

However, since you rented the house after vacating, the depreciation you deducted on your tax returns will be taxed at the special 25 percent federal tax rate for recaptured depreciation. For full details, please consult your tax adviser.

WHAT IF 81-YEAR-OLD MOM STOPS PAYING DAUGHTER'S MORTGAGE?

DEAR BOB: My 81-year-old mom recently co-signed a 40-year mortgage for my "derelict" sister. The loan is in my mom's name but the house deed has both her name and my sister's name on it. My sister has really bad credit. Although she can afford it, she refuses to pay the mortgage monthly payment to my mom, so mom makes the payment. My dad, age 79, is worried about his credit rating. I say, at their ages, does it really matter? My mother also has dementia so my sister and the bank took advantage of her. What should she do? -Dee G.

DEAR DEE: If your mom stops paying the mortgage payments, the bank will foreclose on the house. Should it not sell for enough to pay off the mortgage, the bank could come after your mom for any deficiency loss (although that is highly unlikely).

Of course, if that happens, your mom's credit will be ruined. But, as you say, at age 81, who cares?

This extreme situation shows why an individual should not co-sign for credit to primarily benefit another person, especially a "derelict."

If you and your father knew this was going on, you should have stepped in to stop your mother from co-signing for your sister.

AFTER YOU QUITCLAIM TITLE, YOU CAN'T GET IT BACK

DEAR BOB: A few weeks ago you had a question from a man who wanted to add his girlfriend to the title to his house. You suggested use of a quitclaim deed to convey a half interest. My question is after quitclaiming your title, how can you get it back again? I'm asking because in two years I plan to add my boyfriend's name to the title of my home we will share as our primary residence before selling it two years later -Jeanne S.

DEAR JEANNE: When a property owner signs a quitclaim deed, he conveys whatever interest is desired, such as 50 percent or 100 percent, has his signature notarized, and the deed is recorded to complete the conveyance. After title is transferred, the grantor can't get that title back again.

Before you transfer a partial interest in your property to your boyfriend, please consult a local real estate attorney to determine the best way to hold title. Also consult your tax adviser to discuss the tax consequences.

NO WAY TO GET YOUR NAME OFF MORTGAGE AFTER A DIVORCE

DEAR BOB: As part of my divorce settlement two years ago, I signed a quitclaim deed on the house that was in both our names. The mortgage is still in both our names. He has since remarried and is still living in the house. He says he can't refinance and isn't sure when he is going to sell the house. If something were to happen to him, it is my understanding I will still be responsible for the mortgage payments. Would I get the house? Or would it go to his wife? Can I make him refinance? I really want my name off the mortgage and the house -Teresa B.

DEAR TERESA: If you had a decent divorce attorney, he or she would have resolved these issues in your divorce agreement. Because you signed that quitclaim deed, your ex-husband now owns the house in his name alone.

But your name will always remain on the mortgage obligation. The lender is 99 percent certain to never release you from liability, and you can't force your ex-husband to refinance. It's a shame this wasn't handled as part of the divorce.

If your husband dies, his living trust or will determines who receives title to his house. By signing that quitclaim deed, you are out of the picture to receive the house unless he wills it to you (very unlikely).

Sorry to be the bearer of bad news. But there is nothing you can do to force your ex-husband to refinance or sell the house to get your name off the mortgage.

WHAT IS BEST TAX STRATEGY TO RECEIVE RENTAL HOUSE?

DEAR BOB: What is the best tax strategy for my mother to give me her rental house? Initially, we bought it together, but when it was refinanced my name was taken off the title -Jan B.

DEAR JAN: The best way for you to obtain title to that rental house is to inherit it after your mother dies. Then you get a new stepped-up basis of market value on the date of her death.

If she gifts the house to you now, then you take over her presumably low depreciated adjusted cost basis for the rental property. Also, she must file a federal gift tax return. But no gift tax will be due unless she has given away over $1 million in lifetime nonexempt gifts exceeding $12,000 each. For full details, please consult your tax adviser.

SHOULD HOMEOWNER SWITCH FROM ADJUSTABLE TO FIXED MORTGAGE?

DEAR BOB: I am 64, single, and retired. I have a $125,000 mortgage with an adjustable interest rate currently at 6.3 percent (it can go up to 11 percent). My home is worth about $550,000. I am not planning to sell, but am thinking of refinancing at a 6.375 percent fixed interest rate. It would cost me $2,000 in fees ($1,000 in lender fees and $1,000 in title and escrow charges). Do I really need to spend $2,000 to avoid any future interest-rate increases? -Richard L.

DEAR RICHARD: It's up to you to decide if spending $2,000 to lock in your interest rate at 6.375 percent is worth the $2,000 expense and hassle. I can't give you a payback analysis because you won't be saving anything. But you won't have to worry about rising interest rates.

NO LIABILITY IF TREES AREN'T DAMAGING NEIGHBOR'S PROPERTY

DEAR BOB: After I moved into my home, the neighbor insisted my trees are cracking her patio foundation. The seller knew about this but didn't tell me. I then hired an arborist. According to his report, my trees are not directly affecting the neighbor's home. I do not want to remove my three trees because they make my home secluded. There is a PUD (planned-unit development) association. What are my rights as a homeowner? -Lori K.

DEAR LORI: Depending on the exact facts, it sounds like you have no liability if your trees are not damaging the neighbor's house or patio. The PUD association probably has no involvement because the homeowner's association just manages the common areas, not the individual homeowner lots. For more details, please consult a local real estate attorney.

The new Robert Bruss special report, "The 20 Essential Questions Smart Home Buyers Must Ask to Avoid Overpaying in a Buyer's Market," is now available for $5 from Robert Bruss, 251 Park Road, Burlingame, CA 94010 or by credit card at 1-800-736-1736 or instant Internet delivery at www.BobBruss.com. Questions for this column are welcome at either address.