Safe Harbor for Electing Real Property Trade or Business

Safe Harbor for Electing Real Property Trade or Business

The IRS has provided a safe harbor allowing a trade or business that manages or operates a qualified residential living facility to be treated as a “real property trade or business” solely for purposes of qualifying to make the Code Sec. 163(j)(7)(B) election. This guidance formalizes the proposed safe harbor issued in Notice 2020-59, I.R.B. 2020-34, 782. Taxpayers may apply the rules to tax years beginning after December 31, 2017.

Qualified Residential Living Facilities

A facility is deemed to be a “qualified residential living facility” if it:

  • consists of multiple rental dwelling units within one or more buildings or structures that generally serve as primary residences on a permanent or semi-permanent basis to individual customers or patients;
  • provides supplemental assistive, nursing, or other routine medical services;
  • has an average period of customer or patient use of individual rental dwelling units of 30 days or more; and
  • retains books and records to substantiate requirements.

Further, taxpayers must use the Code Sec. 168(g) alternative depreciation system to depreciate the property under Code Sec. 168(g)(8).

Taxpayers satisfying the requirements of the safe harbor after a deemed cessation of the electing trade or business will have their initial election under Code Sec. 163(j)(7)(B) automatically reinstated.


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