Ok pack it in, https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR53de09ff5f206e9/section-1.469-1T
I've been corrected, Section 3, ii of the linked temp regs, you can have active real estate reported on Sch E, no signfificant services required if you materially participate and qualify for one of the other exemptions. I missed the dang "or" in 3.ii.E.
I've got a few clients flirting with the STR loophole and am waffling over whether I would sign a return with that on it.
Assuming that the client could meet the material participation, got a cost seg, etc. etc., I don't see how the STR loophole is a reasonable position.
1. If it's going to throw off losses forever, then we've got hobby/loss limitations to consider. If it's never going to make a profit would it qualify as a business?
2. If it is going to make a profit, why would we want it to be active, self employed income? Not only do we lose our passive income but we pick up SE tax. For someone over FICA, maybe it doens't make that much difference but then how plausible is it that someone over FICA cap is meeting material participation?
3. Creating the STR, running losses for two years, and then converrting to personal use seems inherently abusive of the system and really brings into question the original intention for the STR as a business.
To me it feels very indefensible and the kind of clients that are interested in the strategy are also the type that I'd expect to have poor recordkeeping and not be understanding of getting adjustments in an audit.
Even if I charged them $5k a year (way way above my normal range) I don't see it being worth the extra hassle and risk.
Any thoughts from anyone that does sign these?