There’s a lot of confusion out there around your rental activity and Section 199A.
Your Section 199A considerations multiply when you have multiple rental activities. Here’s what you need to consider:
· Are your rental activities multiple trades or businesses, or one trade or business?
· Can you aggregate the rentals for Section 199A purposes? Do you want to?
· How does the Section 199A rental safe harbor impact your Section 199A deduction if you use it?
Whether your rental activities are each a trade or business, or they constitute one trade or business, is inherently based on the facts of your particular situation.
The IRS also believes that multiple trades or businesses will generally not exist within an entity unless it can use different methods of accounting for each trade or business under the Section 466 regulations. These regulations explain that you can’t consider a trade or business separate and distinct unless you keep a complete and separable set of books and records for that trade or business.
This determination is an important factor for you if any one rental activity (taken individually) doesn’t rise to the level of a trade or business, but all the rental activities (viewed collectively) do rise to the level of a trade or business. One of the factors the IRS looks to when determining whether a rental activity is a trade or business is the number of properties rented.
The Section 199A regulations allow you to aggregate multiple trades or businesses such that you treat the aggregated group as one trade or business for determining your Section 199A deduction.
This is an important consideration if one or more of your rental businesses has insufficient wages or unadjusted basis in assets (UBIA) to get the maximum Section 199A deduction for that property.
The final regulations tell us you can aggregate, in most circumstances, provided that the rental activities share centralized administrative functions, such as accounting, legal, and human resources functions.
The big wrinkle is the type of rental business: you generally can’t aggregate residential rental businesses and commercial rental businesses with each other because they aren’t the same type of property.
Rental Safe Harbor
Along with the final regulations, the IRS gave you an optional safe harbor to deem your rental activities as qualifying for the Section 199A deduction. We’re not fans of the safe harbor, because we believe that most rentals qualify as a trade or business anyway.