Transcript

Steven Jarvis:

Hello everyone, and welcome to the next episode of the Retirement Tax Services Podcast: Financial Professionals Edition. I am your host, Steven Jarvis, CPA. And in this show, I teach financial advisors how to deliver massive value to their clients through tax planning. Always love having guests on the show, but I get particularly excited when I can have a fellow CPA on with me. And today I have the pleasure of talking with Eric Shadowens, who is a senior tax manager at DMLO CPAs and spends – I think – all of his time working in the real estate realm. So Eric, welcome to the show!

Eric Shadowens:

Thanks for having me.

SJ:

Yeah. It’s great to have you here! We’re gonna dive into the real estate stuff  for most of this conversation, but I wanna start just have you share just kind of a little bit of your perspective, cuz you had talked about how your mindset has shifted more recently; your career to how do you as a CPA, do a little bit more to incorporate kind of some planning elements. So I’d love to hear just a little bit about your mindset on that before we dive into real estate stuff.

ES:

Sure. You know, I’ve said it before. It’s kind of my spiel when I’m out at networking events for a lot of my career. And I think this is the scene for a lot of tax advisors. It’s been putting a number on a piece of paper. Especially during busy season, you get in, you prepare a tax return and as soon as you’re done with it, you never hear or see that client again. And you know, you’re done, you, you think you’ve done your job. But probably in the last three to four years, I got to thinking about, you know, trying to provide more to my client. When you speak to clients or when you speak to someone else’s client, a lot of what you hear is we don’t get enough communication or, you know, ‘well, I’ve never heard of this’ or ‘my friend told me that’ and it’s just a big fear of mine, you know, when I’m working with clients, I never want my clients to say well, ‘I was just talking to someone about this this tax situation’, you know, I, I tried to do my best to, provide more communication and more content rather than just putting up a number on a piece of paper.

ES:

Yeah.

SJ:

I really love hearing that. It’s certainly still, I think the exception for tax preparers really be focused on that, but there are great CPAs out there. So for the advisors listening, don’t give up hope, keep working to improve the tax plan that you do and, and keep looking for those CPAs, like Eric who are open to having these broader conversations about planning.

All right, so for today’s episode, we really wanna focus on, you know, what it is that you spend your time on, which is real estate. And you mentioned it a little bit in there talking about your approach, that there’s kind of that fear of an idea coming up, that a client’s bringing to you that you didn’t proactively share with them. And I feel like this is especially possible in the real estate realm, because it seems like one of those things that people perceive as having a pretty low barrier to entry. Unlike trying to, you know, start your own business. Lots of people think, ‘Hey, real, estate’s something I can do on the side.’ And so you see everything from your casual real estate investor to this is my full-time job and everything in between. So Eric I’ll let you, you pick where we start. I mean, what are some of the things you work with clients on when it comes to real estate to help that education piece you talked about?

Reviewing Tax Returns, Solid Communication and Educating Yourself – Real Estate [03:27]

 

ES:

Well, you know, going back to, you know, how I got into the communication part and this is kind of leading into the real estate, have you ever read an engagement letter for a tax return? Uh, and just starting off with that, if you go through an engagement letter that right off the bat is gonna say, we will not audit you. “Our engagement does not include any procedures designed to detect errors, fraud, or theft. We rely upon the accuracy and completeness of both the information you provide. You are responsible for maintaining adequate documentation to substantiate the accuracy and completeness of your tax returns.” And, you know, I’m not gonna say that’s our engagement letter, but that’s a common engagement letter and I got to reading it and, and it just, you know, it, it just stuck with me. I’ve highlighted that, you know, obviously I just read that straight from a piece of paper, but, uh, it scared me to think, you know, we think that the client knows what they’re doing, then the client thinks we’re telling them what to do.

And that kind of is defined in that engagement letter. So, you know, I kind of started looking at that. And then when I prepare a tax return, you know, you can look at a client and whether they’re really sophisticated or just like you mentioned, maybe they’re just starting out with that first rental property. You know, they may have no bookkeeping skills at all. So if we’re taking their data based on this engagement letter, and we’re not really basing or thinking about the integrity of the data and just putting it on a tax return, you know, that right there could be a red flag for an audit. So it got me to think, and, and it made me wanna start Digg in more to what’s actually being put together in a client’s accounting software and the more digging I did it just made me think, you know, well, there’s things I should be telling the client, for example, just right off the bat in 2018, the tax cut and jobs act, you know, entertainment expenses became a hundred percent non deductible.

ES:

So you would think in 2018, you might still be seeing clients have entertainment expenses, and what I mean by entertainment expenses. You know, you’re taking a peer, a business prospect, maybe out to a sporting event, for example, a football game. And you’re buying the tickets. Maybe you have a suite that you’ve paid some money for, and you have all these expenses and you’re running it through the company. And in the past, maybe you get a little charitable contribution expense out of it, or, you know, the, the rest of it, maybe you get the entertainment expense and, and it would’ve been subject to, you know, at least 50% of it would’ve been deductible. But as I said, beginning in 2018, it’s no longer deductible. And in 2018, if you’re seeing that in a client’s accounting software in their detail, uh, of their books, then you know, to make that correction.

But if you’re still seeing that in 2021, there’s some disconnect between you and your client. And if you’re allowing those expenses to come through on a tax return, how many red flags are possible on a tax return before they add up to something where you’re gonna get a call from the IRS? So one of the main things I’ve begun, you know, it’s, it’s kinda like the cherry picking, you know, when you’re trying to meet with a client, what, what some conversations you can have, um, is just documentation requirements alone. And the documentation requirements is, if I’m looking at a client’s trial balance and I’m looking at their expenses and maybe I see the entertainment expenses, or maybe that leads me maybe to their meals and beverage expense, or it might lead me to other expenses like auto expense. How often, if you’re experienced, if you prepare tax returns, did you see where maybe you’ve asked a client, they’re just a schedule C and their business, and you’ve talked to your client and you’re picking up auto expenses and you just say, well, how many miles did you have last year in business?

ES:

And they’ve given you, you know, ‘well, I had 25,000 miles’, and you’ve taken that 25,000 miles, 25-0-0-0. And you’ve calculated some auto expense based on a standard mileage rate, which this year, I think is 56%. And you’ve put that on a tax, and you’ve never explained to them the actual documentation required in order for them to be able to get that expense on their return. So, uh, one of the luck, one of the things I love to say all the time is when you prepare a tax return and it’s filed every single tax return, when it is filed with the IRS is 100% correct. There’s absolutely nothing wrong with it. Now, when you get audited, the  hundred percent may significantly decrease based on the conversations you do or don’t have with your client. So going back to documentation requirements, and, and we had kind of talked about this before, coming on here, there are some expenses that if you don’t have documentation, you can actually get away with, generally in, in an audit, the burden of proof is on the taxpayer.

So if you get audited in a, uh, IRS, IRS agent comes in and makes a change to some of the positions you’ve taken on your tax return, it’s up to you, the taxpayer. And if you have help with your tax advisor, you have to prove them wrong. You know, they can automatically say, you know, these numbers are incorrect. We change them. You have to prove that they are right. That is the numbers are right. The IRS is wrong. Going to the meals and beverages expense. Generally, when you go out and you have a meal, you should be meeting with a business partner, there should be a business purpose, and you need to document that when you actually have a receipt, you pay for your receipt. And on that receipt, you should be tracking down who you met with and what the business purpose was.

And it’s obviously gonna have the cost and it’s gonna have the date. And that’s some, that’s a receipt you wanna keep track of, uh, because, and there’s a number amount. I think it’s below $75. You don’t necessarily have to have a receipt for meals and beverages, but definitely anything over that amount. If you get audited and the IRS agent asks you for a receipt and you can’t give that to them, they can disallow that expense. So that’s strict substantiation, um, going over to auto expense, I won’t go into great detail. You have options for auto expense, just going back to that schedule C individual, they have an option between taking actual expenses on their auto expenses, or they can calculate a standard mileage rate. So, if they drove going back 25,000 miles, you multiply that times the 56%, that’s an actual expense, um, that they can take.

ES:

But during an audit, the IRS agent is gonna ask for the travel log, and what should generally be happening is the taxpayers should be keeping track of all the travel that they have between business to business. Without that travel log – and it’s supposed to be contemporaneous, you’re actually supposed to be keeping it as you go along – and I’ll throw out a plug to mile IQ. It’s an app. And I have a lot of clients that use that rather than, or then you can just have a, uh, appointment book and write where you travel to. And it’s not just as simple as saying, ‘I drove 50 miles today for business’, in your appointment book, you need to actually track per traveling event, how many miles who you were gonna meet with and, and give some detail. So, strict substantiation.

SJ:

So, Eric let’s pause here just a second here and unpack some of this for the advisors listening, cuz for the most part, the people listen to this podcast are, are financial planners who are not getting into the weeds of doing tax preparation, but there’s, there’s still so much value in what you’re talking about because it really illustrates why a financial advisor or a tax advisor who takes the time to do it, can add a lot of value to their clients by taking the time, to go back through and really look at what’s reported in the tax return. Because that section you read out of the engagement letter, uh, you probably could find that in 98% of the engagement letters for tax returns across the country, and that’s also the approach that a lot of tax preparers take is, okay, I’m gonna rely on the fact that my client gave me accurate data.

I’m gonna put it into a form and we’re gonna send it off. And so whether it’s the advisor saying the financial advisor saying, well, ‘what’s the point me reviewing the tax return of CPA already looked at it’ or the client saying to the advisor, ‘Hey, why are you asking for my tax return? My CPA already looked at it.’ This is why, is that typical tax preparation engagement is focused on data input with some quality control review. So when I’m looking at tax returns, I am always gonna take time to go through the schedule E look at if they’ve got rental properties to say, okay, not just, Hey, do they have expenses related to this revenue? But I’m looking for these types of line items you’re throwing out there to say, ‘Hey, if, if they don’t have anything for auto expense, is that something we should, haven’t go back and look at? Could they have had something there?’ Or, you know, compared to the amount of revenue do these expenses make sense? And oh, I I’m really, you know, I’m always looking for, are there potential errors, but more I’m looking, are there potential opportunities here? Cuz, especially for people who might be newer to the real estate world or, or getting into their first property, they might not even be aware of what all expenses they can report. And so if they’re working with a tax preparer who just says, ‘Hey, gimme all your expenses and I’ll put ’em in there’, and that person’s not taking the time to say, ‘well, what about these types of expenses?’ There could be missed opportunities that this really illustrates why there can be such a value add from taking the time to review that tax return and then help a client understand a little bit better what goes into that. What are some of the things they can do? And then what are some of the things they need to do from a documentation standpoint? Cuz like you said, – I like the way you phrased it – ‘well, when you submit the tax return it is a hundred percent correct.’ People can kind of get this false sense of security that my tax return was filed. And then it was ‘accepted’ by the IRS. And that magically means that it’s perfect and we can move on. But really all that means is the IRS received it in their system and it didn’t hit any of their initial kind of software, red flags. They still have a long period of time where they can go back and start, well, what about this? And, and what about this? So definitely a lot of room to add value for taking the time to dig in and review these returns.

ES:

Absolutely. Now I did mention strict substantiation. There is a possibility because there’s always that chance, you know, you have a situation where you’ve gotten really busy and you’ve failed to keep some support for your expenses. So there are expenses out there such as insurance expense, rain expense, other different types of expenses that if you don’t have support, if you can make a good argument, if you got to this point, uh, that is if you made it to an IRS agent or even took it to tax court, because an IRS agent just allowed an expense, there is a, uh, rule it’s called the Cohen rule. If you can argue that Cohen rule, you still may be able to make an argument to get out of the disallowing of that expense. And you might be asking what the Cohen rule is. I love reading tax court cases and you know, I was telling Steven before we got on here that, you know, ‘Bigger Pockets’ is a social media website that is huge for, uh, real estate investors.

And I’ve learned a lot of, uh, tax law just off of, um, bigger pockets. But the other way I learned tax law, real estate tax law that is, is looking at tax court cases. And there was a tax court case that back in the 1930s this is how this tax court case is: It was a Hollywood producer that put on shows and he traveled around the United States. His name was George Cohen and he’s known for, I think it was Yankee doodle. I always wanna say Yankee doodle dandy, but forgot the actual show of what it was called back then. And he went around the United States and he put on shows and he hosted, you know, actresses, advertisers, marketers, whatever, during the period where he was putting on the show in that state. And he didn’t do a good job of keeping his expenses.

Maybe a lot of it was with cash. Maybe he didn’t get invoices, you know, even back in the 1930s you know, Lord knows how they kept track of their accounting books, but, uh, it’s scary to think, but he got audited. And once he was audited, the agent at the time disallowed a whole lot of his entertainment expenses, which he took to tax court and he fought and his argument was basically, you know, it was obvious he was traveling around. He could prove that he had, he hosted different events. He just couldn’t show a receipt where he spent the money and his argument was reasonable and believable enough by the tax court that they actually allowed a large portion of the expenses that the IRS agent had originally disallowed. The point of this is you can be in potential dire straits when you’re with an IRS agent and you know, there, you still have a fight left, but it’s not something you wanna rely on because at the end of the day, I always stress documentation with my clients.

ES:

And then we go back to, you know, I get on the pulpit and I say, ‘documentation, you gotta keep your receipts and you gotta, and then I have to go back to, well, the chances of you getting audited are gonna be very slim.’ So you kind of waste this whole conversation of, you know, how to do it, right? And then you have to give the disclaimer of, you know, you’re probably never gonna get audited, but it’s that one time that one time out of a hundred, one time out of a thousand, whatever it is, that one person they’re not gonna be happy with their tax advisor because they didn’t have that conversation. And they didn’t know how to keep the documentation properly.

SJ:

Yeah. Those stories can be really powerful, whether it’s the stories you’ve been involved personally or reading these court cases. But yeah, for some of these things, it is more likely to be the exception. But for me, the part of the documentation is that that’s how we really know that we’re doing it right to begin with. Even if it never comes up to the IRS, that’s how we can feel confident that we got the right amount and that we got the right type of expense. Eric, let’s pivot it just a little bit. One of, I, I feel like one point of confusion that comes up quite often when it comes to, uh, real estate properties. We look at schedule E, whether it’s a passive activity or whether someone can be treated as a real estate professional. So talk a little, little bit about the distinction between those two and then why it matters from a tax planning standpoint.

Schedule E – Real Estate Professional Vs. Passive Activity (17:18)

ES:

Sure. I have a really good potential future tax court case to speak about. And it’s a recent situation I ran across where – it’s a client of mine, and it’s a new client and probably for the prior 10 years he has on his tax return, treated it a certain way that has allowed him to take all of his losses on his schedule E and deduct those losses with the W2 income hearings. So to back up here a little bit generally back, I think it was back in 1986. Prior to 1986, a good example is a doctor. They made a whole lot of money and a way for them to help reduce their taxes was to go out and purchase real estate investments, real estate property, and rent it out. And it generates huge paper losses in the very beginning of these rentals because of depreciation and mortgage interest generally, and they were able to freely take those losses and to deduct it against their W2 income they were earning as a doctor. Beginning in 1986, Congress came out and began to, um, they created the passive activity bucket. We’ll call it, and they deemed rental activities as a passive activity. So when you’re looking at a tax return, since I’m talking to financial planners, I think I may have even mentioned this. Steven, I have a financial planner and he talks buckets all the time. And I get lost when he talks buckets and here I am, I’m talking about buckets. So, the thing is when you’re looking at a tax return and you’re calculating tax liability, and actually you’re trying to get to maybe a gross income amount. You have your W2 income, which is… we’ll call it a bucket. And then you have your rental activity, income or loss and its own in its own bucket. It just stays there.

And if you have passive income from your rental activity and passive loss from your rental, you can net that. And if your losses turn out to be greater than your income, it just hangs there in that bucket. And then the question is, where does it go? How do you get rid of it? How do you free it up? So there are two exceptions you can meet that allows that loss to get freed up. Otherwise, if you don’t meet those exceptions, that loss just hangs there and it gets suspended and it goes to future years. So if you, you would be a brand new real estate investor, and you’re a full-time employee of somewhere that’s not in real estate and you’re not an owner of a real estate company. Then the loss gets suspended and goes forward to future years. Okay. But let’s talk about one of the exceptions.

ES:

If you generally have up to $25,000 in rental losses, and, and I’m giving you like a big picture, we’re not gonna dig real down deep into, you know, all the intricacies of this passive activity. But if you have a $25,000 loss, and your gross income is basically than a $100,000 gross income with all your W2. Then the $25,000 loss can offset that a hundred thousand dollars or less of W2 income between a hundred thousand and $150,000. It phases out. So you wouldn’t be able to take up to that $25,000. It reduces as your gross income increases. And once it increases above $150,000, then you’re back in that being stuck in the bucket and getting suspended to future years.

SJ:

Yeah. So for advisors listening, I mean, in, in concept, this is similar to how long term capital gain losses or long term capital losses get limited as far as how much you can take in a, in, in an individual year. So these passive activity, loss limitations, I like how you phrase that it’s kinda this bucket that it gets suspended out there that you’re waiting for an event, whether that’s income in a future year from the rental property or the, or the sale of the rental property, but it comes something you, you want to be aware of and make sure you’re talking to your clients about, because it certainly needs to be included in any future planning considerations of how are we gonna be able to recognize that loss? When are we going to be able to recognize that loss, are there things that we can do to be strategic about? Is this, will this continue to be a passive activity? Can we, can we get to active involvement? But it’s not, it’s not just as simple as, ‘Hey, let’s rent out a property and just, you know, report income and expenses.’

ES:

So getting back to our bucket and our other exception, the other way you can free up your loss is if you meet the real estate professional exception, the real estate professional exception, it’s not an exam. it’s not that you’re a real estate broker, a real estate agent. It can kind of be involved, but it’s not what it sounds like a real estate professional exception. You have to meet certain conditions to meet this exception. One is you have to spend more than 750 hours in a real estate activity. And I’ll say that again, 750 hours in a real estate activity. So it doesn’t mean rental activity. That means combined real estate activity. So going back to the example of the realtor, you can be a realtor and have rental properties, and you can combine that time to meet your 750 hours.

In addition to that, more than 50% of the time you work in a year has to be spent in a real estate activity. So 750 hours, and more than 50% of your time in real estate activity, that’s kind of the first hurdle. The next hurdle is you have to materially participate in your rental activities, and there’s seven different tests you can meet to be deemed materially participating in your rental activity. And I won’t go into all of ’em. The main one is if you work 500 hours in your rental activity, then you materially participate, but then the question comes in, ‘Well, I’ve got 10 rental properties and I spend 50 hours on each of them.’ Well, you have to spend 500 hours in each property individually to materially participate in those properties. You’re saying, ‘oh my gosh, that that’s a lot of time. I can’t do that.’

ES:

Well, there’s an actual election. It’s section 469 C7a. And I always said, if I ever quote revenue code, then you know, that’s bad, but there’s an election you can make on your return that you can group all those rental properties together to meet material participation. So you think you got it. I’m gonna go back to my original example of the client I’m working with. Now, we try to put that together with what you may do on the outside, like when you’re at your day job. So your day job, you may have a w two, you work full time. And in addition to that, maybe you have some other side gigs that has nothing to do with real estate. Okay. So if you are working full time, just in the w2 job alone, that’s 40 hours a week, basically it’s 2080 hours a year that you’re working in your w two job that doesn’t get included in the calculation for the real estate professional exception.

ES:

So maybe you have 750 hours in your real estate activities, but your next step is you don’t have more than 50% of total time in a year. So to do that in this particular client’s case, he would’ve had to work 2081 hours in his real estate activity since he works 2080 hours in his w2 job. So that’s 4,161 hours in one year, which is like 80 to 90 hours a week, right? So we won’t go into how deep of a conversation ahead with that client, but kind of going back to documentation, going back to, you know, communication with your client. You know the initial conversation was, you know, well, I’ve been doing this for 10 years and I’ve, I’ve never had a problem with this just because it’s happened, just because you’ve done it for 10 years, you’ve never gotten audited nothing’s ever happened.

Doesn’t mean it has always been done.  And another important thing to understand here is, you know, there’s generalists in public accounting and then there’s specialists and even specialists. I consider myself… I specialize in real estate tax accounting. You don’t wanna see me doing a manufacturing tax return. You don’t wanna see me doing any other return. I joke about that, but there are so many funky rules. And I like to say, that’s my word of the day, but there are so many rules in just real estate tax accounting alone, that if you don’t deal with it every day, this is complicated stuff. And if you’re not dealing with it all the time, you’re not probably getting a good tax return, there’s gonna be issues with your tax return

SJ:

Yeah. And that’s a really good point to make. As we wrap up this conversation, we’ve talked about a lot of things. And as you’re listening, especially if you’re driving your car and you can’t take notes, you might be thinking, ‘wow, that that was a lot. What do I even begin to do with this?’ And really the goal is to, to make you aware of… to the complexity involved and some of the things you can be on the lookout and then really to drive home this point that Eric is making of there, there are some areas that you want to make sure that as you get further into ’em, you have a specialist that you can refer your clients to, that you can work with your clients on, whether that’s Eric and his firm, or, or another CPA that you’ve found who specializes in real estate.

Real estate is very much one of those areas that gets incredibly intricate very, very quickly. And unfortunately like every other area of the tax code, there isn’t a logic or intuition to it that you can just say, ‘oh, well, now this makes sense. It’s just like these other three things.’ They are also, so very unique. So Eric, before we switch into action items, uh, if, if someone’s listening to this and thinking, yeah, I need a resource for my clients. And Eric sounds like he knows what he is talking about when it comes to real estate. I mean, how would somebody reach out to you?

ES:

I’m very active on social media. And there’s not many accountants that do this, but I’m, I’m very active on LinkedIn. I try to post frequently, so, if you Google me, I’m on LinkedIn. Definitely. You can always email me, it’s eshadowens@DMLO.com. But I’ll be happy to answer questions. I’m telling everybody I could talk about real estate tax all night long. Uh, you get me talking, I don’t shut up – unfortunately- sometimes.

Action Items [27:41]

SJ:

Nah, I love to nerd out on this kind of stuff. So we’ll make sure that all ends up in the show notes. So before we wrap up, we always wanna make sure we include action items. So a as we have this, this really kind of wide ranging and complex conversation, you know, the, the first action item I’m gonna put out there is if you have clients who are involved in real estate at whatever end of the spectrum they’re at, you need to make sure that you have dedicated time for your own education for finding resources for your clients. This isn’t something you can just sit back and say, oh, I did this once or twice, or I did this 10 years ago, I’ve got this covered. It’s an evolving and complicated area. So making that commitment to education and finding resources for your clients is definitely the first thing.

And then I mentioned it earlier on, but this is a prime example of why you should be getting tax returns for all of your clients and taking the time to review them. Even in an area like real estate, where there is a lot of complexity – with some practice – you can still be identifying where conversations need to be happening, where there might be opportunities, and then getting connected with a great resource to see that through Eric, from our conversation, any other action items you’d recommend to our listeners?

ES:

Well, I think for a financial planner, the good thing is, it’s not that your client expects you to know a tax return. So no question is a dumb question. So if it’s something that doesn’t look familiar to you, especially in the real estate world, you know, I would always pose that question to your client and, you know, get a conversation going with their tax advisor. So that the communication goes well. And, you know, there’s that three way conversation. I have recently tried to develop a good network of like an attorney, a tax… not tax, I’m a tax advisor, but an attorney, a realtor, a banker, mortgage guy. Get your network put together so that if you have any sort of questions, you know? I don’t know a lot about mortgages, but I’ve got a guy that does. So definitely a good action item is to build your network of different people that’s knowledgeable in different industries, and that’s gonna make your job that much better when you’re speaking to your client.

SJ:

Yeah. I love that. It’s a great recommendation. Well, Eric, thanks so much for being here and taking the time to do this. I really appreciate you coming on.

ES:

I appreciate you having me. I had a fun time.

SJ:

And to everyone listening, thanks for being here. Until next time, good luck out there, and remember to tip your server, not the IRS!