Ninth Circuit affirms self-rental rule.

• Author: Hudson, Boyd D.

As part of the Tax Reform Act of 1986, Congress enacted Sec. 469, limiting passive activity losses (PALs). As a general rule, PALs can only be offset against income from other passive activities; such losses cannot be off-set against nonpassive income, such as dividends, interest, wages or most Schedule C income. Passive activities are those from activities in which the taxpayer does not "materially participate" Temp. Kegs. Sec. 1.469-5T contains detailed tests for what constitutes material participation. Under Sec. 469 (c)(7), rental real estate is defined as a passive activity, regardless of the level of participation. PALs that cannot be used in the current tax year (due to an absence of income from other passive activities) are suspended until later years, when the taxpayer either has sufficient passive activity income or disposes of the activity that generated the losses in a taxable transaction. Because the application of Sec. 469 can be complex, Congress gave the IRS the authority to issue regulations under the PAL rules (Sec. 469(1)).

As a result, taxpayers who have incurred losses from rental activities often search for ways to generate passive activity income to offset their otherwise nondeductible PALs. A recent case from the Ninth Circuit discusses a technique commonly used to deal with this situation.

Facts

Gary and Dolores Beecher each owned a C corporation engaged in automobile repair and refurbishment. The Beechers conducted the business of the two corporations out of their personal residence; the two corporations paid the Beechers monthly rent for this office space. In addition, the taxpayers owned five (passive) rental properties that generated operating losses. The couple used the operating losses from the rental properties to offset the corporate rental income on their individual returns; as a result, they paid no income tax on the corporate rental income.

The Service disallowed this treatment, stating that although rental income is generally characterized as passive, such income was nonpassive under the "self-rental" rule in...