Co-owner helped brother buy house, now wants to avoid tax liability upon sale

Q: I own a house with my brother that we bought for $243,000. We now plan to sell it for about $323,000. My brother lived in it until last year and then rented it out.

My tax bracket is very high and his is low. Since he was living in it, I have decided to quitclaim my interest to him because I do not want the profit or the additional tax implications that will arise from the sale. He paid the mortgage on this home for several years, so really he should be the one to gain from the sale.

But I want to ensure that this quitclaim move does not have negative tax implications for either one of us.

A: Given your high income tax bracket, we hope you're working with a good accountant that can walk you through your situation. Before you sign anything, we recommend that you sit down with your accountant before going down the quitclaim road.

While you purchased the home for $243,000 and you'd now sell it for $323,000, the $80,000 profit doesn't mean either of you would pay that much in federal income taxes. You'd have to understand the cost basis of the home to determine the true profit.

The cost basis includes the cost of purchase, the costs of sale (such as closing costs and the real estate sales commission) and the cost of any capital improvements you put into the property during your ownership. Add everything together and then subtract that number from the sales price to get the profit.

If we assume you incurred about $5,000 in costs when you purchased the property, and you had $25,000 in costs of sale, and you and your brother put in $30,000 in capital improvements while you owned the home, that would cut your profit down to about $20,000. Given that your brother owned the home as his primary residence, he wouldn't have to pay tax on the first $250,000 in profits. Presumably if you and he own the home equally, you'd end up paying tax on about $10,000, assuming the numbers in this example are true.

There are quite a number of permutations to your situation. If we assume that you will have $80,000 in profit from the sale and you owned the home with your brother, then the question is who took advantages of the deduction for mortgage interest, real estate taxes and any other tax benefits during the time the home was owned by the two of you.

If you took tax benefits and claimed an ownership in the home, it would be hard for you to now claim that you never had any ownership interest in the home. Just because you want to avoid paying taxes on the money and you want your brother to benefit from the sale would not give you the right simply to transfer the home to your brother without any tax consequences to you.

A good tax accountant can walk you through your options, see what positions you've taken with the IRS in the past and determine what position you can take now when it comes to selling the home.

Presumably, if you assisted your brother in buying the home by placing your name on the title and signing the mortgage because he couldn't afford or couldn't get a loan on his own, and your brother treated the home as his own, paid all of its expenses, including the mortgage, real estate taxes, insurance and maintenance, and he took all of the tax benefits, you could argue that your ownership interest in the home was to assist him and you never truly intended to benefit from the profits on sale or tax benefits.

This situation isn't unusual, and we are not aware of the IRS viewing a person like you as a taxpayer responsible for payment of the profits on the sale of the home. The question for you is whether you fall into this category or not. Your tax professional should be able to help you out.

(Ilyce R. Glink is the author of many books on real estate and host of "Real Estate Minute" on her YouTube.com/expertrealestatetips channel. Samuel J. Tamkin is a Chicago-based real estate attorney. If you have questions, you can call her radio show toll-free (800-972-8255) any Sunday, from 11a-1p EST. Contact Ilyce through her Web site, http://www.thinkglink.com.)

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