When Real Estate Investors Should Use S Corporations - By: Stephen Nelson

Accountants and lawyers sometimes joke that there's an eleventh commandment, "Thou shall not use corporations to invest in real estate." And for good reason. Real estate loses many of its tax benefits when you invest through or inside a corporation.

In a handful of cases, however, a special sort of corporation-- a subchapter S corporation--may be useful for real estate investors, as discussed below...

S Corporations Work Well for Real Estate Flippers

One situation where an S corporation works well is flipping.

If someone regularly flips real estate, profits and losses are not treated as capital gains or capital losses. Rather, profits and losses are treated as ordinary income and loss.

That "ordinary" treatment isn't all bad. For example, while ordinary income never gets taxed using the low capital gains rates (which is bad), an ordinary loss unlike a capital loss can easily be used to offset other income (which is good).

However, "ordinary" treatment creates a trap for real estate flippers. Ordinary income is subject to both income taxes and self-employment taxes. Specifically, in addition to any income taxes a real estate flipper pays on his or her profits, a flipper also pays a 15.3% self-employment tax on roughly the first $100,000 of annual profit and a 2.9% self-employment tax on anything over $100,000 in annual profit.

For example, a house flipper that makes $100,000 in some year pays not only income taxes but also a 15.3% self-employment tax, or roughly $15,000.

An S corporation, however, offers up a loophole. In an S corporation, only that portion of the profit that gets paid out as designated wages gets subjected to the employment tax.

Suppose, for example, a real estate flipper operates as an S corporation, makes $100,000 in profit some year, but pays only $50,000 of this profit out to the shareholder-employee as wages. In this case, the employment tax equals 15.3% of the $50,000 of wages, or roughly $7500. And the S corporation therefore saves the real estate investor about $7500.

S Corporations Work Well for Rehabbers

And there's a related group of real estate investors for whom an S corporation works, too.

If you're someone who's buying fixers, making substantial improvements, and then re-selling, there's a good chance that your real estate activities are considered an active trade or business (which means ordinary income treatment and self-employment taxes).

Accordingly, rehab-ers can often use an S corporation to save on self-employment taxes just as flippers can.

A quick digression: If you're confused about how real estate flipping or rehabbing can be treated as an active trade or business and subject to both ordinary income and self-employment taxes, think about the cases of a retailer or a home builder. A retailer selling, for example, computers does not get to call her gross profit capital gain. And a home builder constructing spec homes does not get to call his profit capital gain.

From the point of the tax laws, a flipper is just a "retailer" whose inventory consists of houses. And someone who rehabs fixer-uppers is sort of a home builder.

S Corporations For Property Management Activities

One other S corporation opportunity exists for real estate investors. Specifically, passive real estate investors may sometimes benefit by setting up an S corporation to perform property management for their real estate. This S corporation then employs the real estate investor to do the work of managing, the properties.

A property management S corporation sometimes makes sense because the S corporation allows the real estate investor to accrue social security benefits and because the S corporation, by creating earned income for the real estate investor, also lets the investor provide him- or herself with tax-free fringe benefits like a retirement plan or health insurance.

A real estate investor with, for example, several rentals might form a property management S corporation, pay a reasonable salary, and then get tax-free health insurance and a 401(k). These sorts of tax-free fringe benefits could save a family $5,000 to $10,000 a year in taxes.

Note: Setting up an S corporation for property management purposes can be tricky. While real estate investors tend to be a do-it-yourself bunch, for an S corporation, you probably want to get expert help from a knowledgeable CPA, tax attorney or enrolled agent.

About the Author

Bellevue CPA Steve Nelson serves entrepreneurs and other taxpayers with complex finances. Nelson is also the author of QuickBooks for Dummies and the editor of the popular Do-it-yourself S Corp web site.

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