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taxmanrog
taxmanrog, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 373
Experience:  Licensed CPA, MA, MST with 29 year's experience. Teach Accounting and Tax courses at Masters level.
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Hi, 1) I setup an LLC and loaned $228K to the LLC in the

Customer Question

Hi,
1) I setup an LLC and loaned $228K to the LLC in the form of a mortgage for the purchase and renovation of a building / property.
2) Now, the Department of Transportation (DOT) is going to pay the LLC $315K for damages to the improvements / property.
3) Renovation costs went over budget and I ended up investing more than $315K in the property.
4) I'm being left with the property and am trying to rezone / resell it for another use.
5) The question is: Would it decrease my taxes if I were to file a quit claim deed and take the property back? Both the LLC and business are reported under my personal SS#. 6) The LLC has been unable to pay the mortgage as a result of the DOT's interference in the business.
7) It's my understanding that the $87K difference will be treated as damages and won't be subject to taxes if the title is transferred to me. Whereas, if I leave it in the treated LLC's name it may be treated as capital gains.
8) FYI, I'm being left with the property and am trying to rezone it and resell it for another use, since I can no longer use it, for my purposes, without the portion the DOT is taking.
9) I'm hoping to get another $250K or so from the remainder, if possible, and assume that will be treated as short term capital gains if it's sold less than two years after taking ownership. I guess that raises another question, which is ... if I file a quick claim deed instead of repossessing the property, will the two year period start over? The LLC purchased the property a year and a half ago and I financed the purchase.
Thank you!
Submitted: 11 months ago.
Category: Tax
Expert:  taxmanrog replied 11 months ago.

Hi! Welcome to Just Answers! Thank you for the opportunity to answer your issue! I will do my best to help!

What you basically have is a condemnation of your property by the DOT. The IRS defines a condemnation as "the process by which private property is legally taken for public use without the owner's consent. The property may be taken by the federal government, a state government, a political subdivision, or a private organization that has the power to legally take it. The owner receives a condemnation award (money or property) in exchange for the property taken. A condemnation is like a forced sale, the owner being the seller and the condemning authority being the buyer."

They are paying you for damage they did plus any property that they are seizing. The IRS calls this an "involuntary conversion". Normally, under IRC §1033, you can defer any gain on the sale or conversion of the property for up to four years, assuming that certain conditions are met. The property must be 1) destroyed because of a casualty (hurricane, earthquake, fire, flood, etc), 2) Lost because of theft, or 3) transferred because of condemnation or the threat of condemnation.

The owner of the property does not have to be concerned about immediate replacement, as he would under an IRC §1031 exchange. Here, the owner has two years or longer to replace the property and defer the gain.

In some instances, only a portion of a property could be involuntarily converted. For example, under the power of eminent domain, a city might take a building owner’s parking lot, but not the building. If the taking of the parking lot renders the operation of the building economically impractical, then the property owner could sell the building as part of the original conversion and defer capital gain from the building sale as well. Known as the Masser Doctrine, thistax court decision allowed for the involuntary conversion of all property within the same economic unit.

In an IRS ruling, the Service stated “[W]here all the facts and circumstances show a substantial economic relationship between the condemned property and the other property sold by the taxpayer, so that together they constituted one economic property unit, such as existed in the Masser case, involuntary conversion treatment for the proceeds of the voluntary sale will be permitted.”

Since the DOT is only taking part of your property and leaving you with part of the property, you have a partial conversion, so the sale of the property for the additional $250k can be linked to the condemnation by the DOT.

Whenever a property is involuntarily converted, it must be replaced within a specific timeline with a property of equal value in order to receive complete tax-deferral. The type of property, and its use at the time of conversion, are important factors in determining how long a taxpayer has to acquire a replacement property, as well as the specific kind of property to be acquired. Additionally, the manner in which it was involuntarily converted (e.g., destruction or condemnation) can narrow the replacement property choices for a taxpayer.

 

The replacement period starts from the earliest of: a) the date the converted property is disposed of; or b) the date of a threat or imminence of requisition or condemnation. The replacement period ends anywhere from two to four years from the end of the tax-year during which any part of the gain is realized.


For conversions due to condemnation or a sale due to the threat or imminence thereof, there is a three-year replacement period beginning at the end of the tax year the condemnation proceeds are received.

If your property was condemned or disposed of under the threat of condemnation, figure your gain or loss by comparing the adjusted basis of your condemned property with your net condemnation award.

 

If your net condemnation award is more than the adjusted basis of the condemned property, you have a gain. You can postpone reporting gain from a condemnation if you buy replacement property. If only part of your property is condemned, you can treat the cost of restoring the remaining part to its former usefulness as the cost of replacement property.

 

If your net condemnation award is less than your adjusted basis, you have a loss. If your loss is from property you held for personal use, you cannot deduct it. You must report any deductible loss in the tax year it happened.


Since your LLC is a single member LLC, it is a disregarded entity, which means that you report transactions as if the LLC did not exist. Therefore, don't worry about any quit claiming back to you. Also, the holding period for long-term capital gains is one year.

I hope this answers your questions! If you have any more, feel free to ask! If not, and you have found my answer to be helpful, please rate me highly! I would appreciate that!

Thank you again, and have a great evening!

Roger

Your adjusted basis is the cost of the property, meaning what you paid for it plus the cost of all improvements, less any depreciation taken.

taxmanrog, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 373
Experience: Licensed CPA, MA, MST with 29 year's experience. Teach Accounting and Tax courses at Masters level.
taxmanrog and other Tax Specialists are ready to help you
Customer: replied 11 months ago.

Thank you, XXXXX XXXXX! I really appreciate how quickly you responded and how thorough you were!


 


Most sincerely,


Kathleen

Expert:  taxmanrog replied 11 months ago.
Thank you for your excellent rating! If you have any more questions about this condemnation, §1033 exchanges, or on the very similar §1031 like-kind exchanges, or on any other tax topic, please feel free to ask for me!

Have a great week!

Roger
Customer: replied 11 months ago.

Hi Roger,


 


I hope this finds you well. Thanks again for your response. It turns out we ended up closing the very next day! I asked if we had a closing date yet, and they said, "How about today?"


 


When I recieved the settlement they paid with two checks. One was to pay-off the mortgage, unpaid interest and penalties and that was made to me as the mortgagee. That removed me from the deed, as the party who made the loan. The balance of the settlement, around $75K was paid to the LLC.


 


Now the question is, what do I need to do to take a portion of the $75K back? I paid that much additional for the improvements, but didn't include it in the original loan and didn't create a new loan document.


 


Basically, it was paid to contractors, a few thousand here and a few thousand there. I intended to create new loan docs at the time, but didn't as I was so overwhelmed with what was transpiring with the DOT.


 


Thanks for your response, Roger. I'm happy to pay you an additional amount for your answer!


 


Most sincerely,


Kathleen


 


 

Expert:  taxmanrog replied 11 months ago.
Hi! Welcome back!

You don't need to have a written mortgage when you loan the company money. If you paid the $75k to the contractors for improvements, and you own the LLC, the entry on the LLC's books would have been a long-term liability called "Due to Shareholder" in the amount of the payments. You said that it was in excess of the $315k, so I am guessing that you actually paid more than $75k for the additional improvements.

If this is the case, figure out how much you paid in total, and have your accountant simply record the payments as the asset "Leasehold Improvements" for the LLC, and put the liability "Due to Shareholder" on the liability side. Then you can simply pay off your shareholder loan.

I hope this helps! Congratulations on your rapid closing!

Roger
Customer: replied 11 months ago.

Hi Roger,


 


I think part of the problem is, I need a different accountant. He said, the amount I paid the contractors above and beyond the mortgage would be treated as a capital investment and I could only write off $5,000 per year.


 


I read a little about: "Leasehold Improvements" and just want to clarify to make sure it applies. I financed the project for the LLC, which was to rent the property to a S-corp that I established to run the school.


 


I established separate entities with the LLC as owner of the property and the S-corp as owner of the school, hoping that if the school were to get sued for something a teacher did, the property would be protected.


 


As it turned out, the school leased the property from the LLC for a couple of months before the DOT shot us out of the water entirely. Then both the LLC and school stopped making payments because I could no longer afford it and the point was mute!


 


I didn't distribute shares to myself since I'm the sole owner of the LLC. I'm assuming the liability can be listed as, "Due to Managing Member," correct? If so, I assume I can just write a check to myself with that notation and leave a portion in the LLC's account to cover expenses while I work on rezoning and hopefully selling the remaining property.


 


Any advice on what questions to ask when I look for a new accountant?


 


Any chance I can have you do my taxes through Answer.Tax? If so, you're hired!


 


Thank you again for your quick and thorough response!


Kathleen

Expert:  taxmanrog replied 11 months ago.
Kathleen,

Your accountant is not correct. He is looking at it as a capital loss, which is only $3000 per year, not $5000. The entire purpose of the involuntary conversion is to avoid this and defer the gain or loss. He is looking at the wrong issue!

The loan to the LLC is something totally different from gains and losses. As I said, it is fairly simple, you loaned the LLC money and it needs to be repaid. The fact that there is no recorded mortgage is immaterial. You are the owner of the LLC, so you can loan it money if you want to, and you can collect when you want to.

You are correct, it would be "Due to Managing Member" not shareholder. Just a slip up in terminology.

I wish I could do your return! Unfortunately this site limits the work that we can do to this site only, and prohibits contact between experts and customers. Have you checked the Georgia CPA Society? Where are you located? I have clients in Norcross and Alpharetta, I could do some checking for you.

Thanks for getting back to me! Good luck with this! Check back tomorrow, and I will see if I can get some referrals before then.

Roger
Customer: replied 11 months ago.

Thanks Roger! I'm so glad I found you. What a difference between what you're telling me and what my accountant was saying!


 


Thanks for telling me about the Georgia CPA Society. I checked it and found a few possibilities.


 


The property is located in Augusta. I'll check back with you tomorrow and see if you have any referrals. Then I'll leave you another EXCELLENT review!


 


Thank you SO much !!!


Kathleen

Expert:  taxmanrog replied 11 months ago.
Thank you! I appreciate the rating!

Have a great week, or what is left of it!

Roger
taxmanrog, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 373
Experience: Licensed CPA, MA, MST with 29 year's experience. Teach Accounting and Tax courses at Masters level.
taxmanrog and other Tax Specialists are ready to help you
Customer: replied 11 months ago.

You're most welcome, Roger! I REALLY appreciate you.


 


Don't know if you found any referrals for Augusta or not. If so, that would be great. If not that's fine, too. At least I have a good starting point with the CPA Society.


 


Best wishes!


Kathleen

Expert:  taxmanrog replied 11 months ago.
Kathleen:

I have been informed that we can't make specific referrals here. I would say that your best bet would be to call the Georgia Society of CPAs. They could refer you to someone good. I am a member of the Illinois CPA Society, and they have a referral website. Don't just take the first one. Call several, lay out your scenario, and see what they have to say. This is how you would weed out the ones who are there just to do simple returns! I often get calls from people who check the website and have questions.

I am glad that I was able to help you! If you ever have any more questions, please feel free to ask for me!

Thanks again, and have a great weekend!

Roger
Customer: replied 11 months ago.

Thank you, Roger! I totally understand.


 


You've already saved me tens of thousands of dollars and I appreciate your advice tremendously!


 


I'll check out the CPA Society and lay out my scenario before selecting a new accountant.


 


If I'm ever in doubt again about something my accountant has told me, I'll ask for you! I'm so glad I discovered Just Answer. What a great service. I've already recommended it to friends, based on my wonderful experience.


 


Best wishes!


Kathleen

Expert:  taxmanrog replied 11 months ago.
You are very welcome Kathleen! It has been a pleasure working with you! If you ever have a tax question, please feel free to come back and ask for me!

Have a great weekend!

Roger
Customer: replied 11 months ago.

Thanks, Roger! I'll definitely ask for you, if I have future tax questions! What a breath of fresh air you've been and how wonderful to be able to pose a question online and have it answered expediently!


 


I wasted two weeks calling different CPAs and tax attorneys. Got no response before I thought to look online!


 


I'll be a walking, talking billboard for Just Answer, thanks to you!


 


All the best,


Kathleen

Expert:  taxmanrog replied 11 months ago.
Again, thanks and all the best to you too!

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