Considering selling real estate in Maine before the end of the year? Most likely you hope to entice a qualified buyer who has plenty of cash on hand. But being open to the idea of an installment sale may help you seal the deal, and fortunately, installment sales also offer tax savings for sellers. Here’s how these deals work.

Qualifying as an Installment Sale

With an installment sale, the buyer makes payments to the seller over time, rather than handing over a lump sum at closing. The buyer’s obligation to make future payments to the seller may be spelled out in a deed of trust, note, land contract, mortgage or other evidence of debt.

An installment sale, under the tax code, allows the seller to defer tax on a gain from the sale and possibly reduce the overall tax liability by spreading out the tax liability over several years. So, for real estate owners it’s a popular tax planning technique.

You must receive at least one payment after the year of the sale to qualify as an installment sale under the tax law. For example, if you sell real estate in October and receive a total of three monthly payments in October, November and December, you aren’t eligible for installment sale reporting. Conversely, if you arrange to receive only two payments — say, one in December 2017 and the other in January 2018 — you qualify.

In addition, you can “elect out of” installment sale treatment when you file your 2017 tax return if it suits your needs. Also note that the installment sale rules apply only to gains, not losses.

Understanding the Exclusions

The following types of transactions are not eligible for installment sale reporting:

• Sale of inventory of personal property,
• Sales of personal property by a dealer (a person who regularly sells or otherwise disposes of this type of personal property on the installment basis), unless the property is used or produced in farming,
• Sales of timeshares and residential lots by dealers, unless the buyer elects to pay a special interest charge, and
• Sales of stock or securities traded on an established securities market.

You must report the entire gain on the sale in the year in which it occurs for these types of transactions.

Reaping the Tax Benefits

Although installment sales require you to wait several years to receive the property’s full fair market value, they offer three key tax advantages:

1. Long-term capital gains treatment. Any gain is taxed as tax-favored long-term gain if you’ve owned the property for longer than one year with an installment sale of real estate. Under current tax law, the maximum long-term capital gains rate is 15%, or 20% if you are in the top ordinary income tax bracket of 39.6%. Even if you’re also liable for the 3.8% net investment income tax (NIIT), the maximum combined federal tax rate is limited to 23.8%.

2. Tax deferral. Instead of paying tax on the entire gain in one year, only a portion of your gain is taxable in the year of the sale. The remainder is taxable in the years payments are received.

The taxable portion of each payment is based on the “gross profit ratio.” To calculate this ratio, divide the gross profit from the sale by the price.

For example, in November 2017, you sell a small apartment building that you acquired in 2005 with an adjusted tax basis of $600,000. The buyer agrees to pay $1.5 million in three annual installments of $500,000 each. Because your gross profit is $900,000 ($1.5 million – $600,000), the taxable percentage of each installment received is 60% ($900,000 / $1.5 million). When you report the sale on your 2017 tax return, you have to pay tax on only $300,000 of the gain (60% x $500,000). You’ll also be taxed on $300,000 of gain in 2018 and 2019.

3. Lower tax liability. Gain from an installment sale is spread out over several years, so you may benefit from the tax rate differential in each of those years. For simplicity, let’s assume that you arrange a five-year installment sale where $50,000 of the gain is taxed at the 15% rate each year instead of the 20% rate (if the entire gain had been taxed in the year of sale). As a result, you save $2,500 ($50,000 x 5% tax rate differential) each year for a total savings of $12,500 ($2,500 x 5 years). These rates may change in the future if tax reforms are enacted, however.

Navigating Other Tax Hurdles

Be aware that the tax law contains some hidden “tax traps” for the unwary when property is sold on the installment sale basis. First, any depreciation claimed on the property must be recaptured as ordinary income to the extent it exceeds the amount allowed under the straight-line method. The adjusted basis of the property is increased by the amount of recaptured income, thereby decreasing the gain realized in future years.

Additionally, if the sales price of your Maine property (other than farm property or personal property) exceeds $150,000, interest must be paid on the deferred tax to the extent that your outstanding installment obligations exceed $5 million.

Finally, unless you can demonstrate that tax avoidance wasn’t a principal purpose of the sale; sales of depreciable property to related parties are prohibited. Furthermore, if the related party disposes of the property within two years, either by resale or some other method, the remaining tax is due immediately.

Important note: The definition of a “related party” isn’t limited to immediate family members, such as your spouse, children, grandchildren, siblings and parents. It also includes a partnership or corporation in which you have a controlling interest or an estate or trust that you’re connected to. Consider adding a clause that stipulates that the property can’t be disposed of within two years to avoid any negative tax results when deals involve related parties.

Bottom Line

Installment sales can help finalize an agreement for patient sellers who aren’t strapped for cash, but installment sales aren’t right for every real estate transaction. Filler & Associates or your tax advisor can help you cement a profitable deal with favorable tax consequences.