Posted by Frank Chin on March 28, 2005 at 07:48:22:
Brian:
I’m not an attorney or CPA, so I suggest you and your dad see an attorney/CPA and draft a partnership agreement. I used folks that are both attorney and CPA, and there are many of them out there who understands the issues.
To begin with, RE partnerships contains these elements:
1- Downpayment
2- Mortgage (Liability)
3- Income or Loss
4- Capital Gain or Loss on Sale
By default, the percentage of each partner is in proportion to the down payment. So if you put 40% down, you proportion is 40% for all the elements.
However, a partnership agreement can be made which varies from the above. For intance, he can take all or a large portion of another element, and take no deductions. But the key is that you’ll need a partnership agreement.
For instance, he may opt to take all the capital gains while giving you all the deductions. If you strategy is buy and hold, it does not matter as the sale would be years away, and which point he can gift you the gain.
The partneship agreement should also cover the death of one of the owners, though this aspect of it should also be written in the deed. Percentage ownership an d inheritance can alos be written into the deed.
This is important if you have several siblings, and you and your dad may not wish to have the siblings be your partner upon death.
I have partnerships done with family members, and had attorneys review them. In one case, it was written to allocate percentage ownership, and determine who inherits on the death of one partners. The attorney determined that this can best be incorpporated into the deed, so we refiled the deed.
The reason we needed the partnership agreement was I provided most of the downpayment, and the remaining elements were not in proportion to the down payment. Also, my partner and I decided the survivor should inherit the interest of the other on death.
As to the other issues in the partnerhsip agreement that we wrote pertaining to who does the accounting, renting the place out etc., the attorney determined it was adequate, and requires no further action.
Also, I know of two family members of ours who partnered, and one took all the deductions. Problem was at the time of sale. The CPA had a problem determining the basis, and recapture.
Bottom line was the tax return was filed under the name of the person taking all the deductions, with the partners splitting the gains “unofficially” by banking the proceeds into a joint bank account.
The downside of this approach was the partnership who took all the deductions had a very high income at the time of sale, triggering the AMT. The capital gains tax would had been far less had it been split more evenly.
Frank Chin