BY STEVEN L. ABEL
FOR THE FAMILY & DIVORCE MEDIATION COUNCIL OF GREATER NEW YORK, MARCH 25, 2004

Example #5: Bob and Sue decided to split the sheets. In December 1998, Bob moved out of the home that they had both purchased in 1997. The divorce proceedings got ugly and complicated, and dragged on and on. While still legally married, Bob and Sue sold the home in November 2000. And, even though they filed a joint tax return for 2000, they will not receive the benefit of the full exclusion. Why? Because Bob did not use the home as his principal residence for at least two of the five years prior to the sale…

Is this conclusion correct?

More facts: House purchase price: $200,000. Improvements cost $50,000. Sales Price: $700,000. Mortgage pay-off: $150,000.

Is Sue’s gain exempt?

Is Bob’s gain exempt?

TRUE OR FALSE?

Husband moved out, so it’s not his principal residence, so he must pay capital gains tax?

At age 55, you get a $125,000 capital gains tax exemption?

If you buy a new house, you can “roll-over” the capital gain and avoid the tax?

Our mortgage is so high, there’s no money left. Do we have topay capital gains tax?

The answers to these questions are at the end of this article.

OVERVIEW

In this article, I’ll review the possible ways divorcing couples can handle their house, and present the major considerations for and against each option. Then I’ll point out the capital gains tax rules, the tax rules for transfer of property between spouses, the tax rules for deductions related to houses. I’ve included Worksheets you can use to estimate what happens on sale and possible taxes.

Lastly I’ve selected part of the tax law and regulations if you want to dig more deeply yourself.

5 OPTIONS FOR A HOUSE

  1. Sell it now.
  2. Sell it later: one or both occupy until sale.
  3. Transfer to other spouse, with or without cash payment, or trade, now or later.
  4. Rent it to a third party and divide the income.
  5. Transfer ownership to children or divorce mediator. Are there any other options?

Capital Gains tax and other considerations, drive decision.

Major Considerations

  • Emotional attachment to house.
  • Children’s need for stability.
  • New significant other.
  • Financial ability to pay mortgage, taxes, insurance, and utilities.
  • Financial entanglement of existing joint mortgage, or future debts of one spouse, or future rental income.
  • Investment value of real estate.
  • Capital gains tax due on sale.

Sell it Now

Non-tax reasons to sell now:

  • Can’t afford to keep up mortgage and taxes.
  • Need cash now, non-user’s equity released.
  • Clean break.
  • Existing mortgage is paid off, no further problems of non-payment affecting both spouse’s credit, and no issue as to principal reduction.
  • Less need to agree on sales price as marketplace fixes actual price.
  • Agree on division of proceeds.
  • Avoids future non-cooperation of occupying spouse.
  • Nobody likes a house overlooking a cemetery.

Non-tax reasons not to sell now:

  • Cash not needed.
  • Less disruption for children.
  • Can’t agree on sales price, broker, etc.
  • No need to agree on future repairs and improvements.
  • Mortgage & taxes affordable.

Tax reasons:

  • Right now, no tax is due on $500,000 of gain.
  • No need to agree on who gets tax deductions for interest and taxes.

Sell it Later

Non-tax reasons to sell later:

  • Custodial parent needs place to live with children.
  • Already separated.
  • Cash is not needed, non-user shares appreciation.
  • Agree on when to sell, and how to fix selling price and split, and possible option to buy by one spouse.
  • Agree on sharing of expenses: mortgage, taxes, insurance, repairs, dues, and selling expenses, and sharing of principal reduction.

Non-tax reasons not to sell it later:

  • Can’t agree on sales price, broker, repairs and improvements, etc.
  • Usually a sharing of repair costs.
  • Non-user’s equity locked and non-producing.
  • Existing mortgage: non-payment affects both spouse’s credit.
  • Non-cooperation by occupying spouse on sale.

Tax reasons:

  • Gain may still be exempt for both spouses.
  • Agree on who gets tax deduction for interest and taxes.

Transfer to One Spouse

Non-tax reasons to transfer:

  • Clean Break.
  • Non-user equity no longer an issue.
  • Spouse owns where s/he lives, makes own decisions as to repairs and improvement.
  • Carrying is affordable.
  • Children need home.
  • No complications on sale, or
  • No need to agree on sales price, broker, repairs or improvements, etc.
  • Spouse wants new significant other to move in.
  • Agree on price and terms.
  • Principal reduction of mortgage belongs to owner.
  • House does not overlook bus garage.

Non-tax reasons not to transfer:

  • Unable to agree on price and terms.
  • Unable to pay the price by cash, trading assets, nor new mortgage.
  • Advantage of not moving for only one spouse.
  • Existing mortgage – how and when to refinance out of joint name.

Tax reasons:

  • No tax due on transfer, but what happens to other spouse’s $250,000 exemption?
  • No need to agree on who gets tax deductions for interest and taxes.

THE BUILDING BLOCKS OF CAPITAL GAINS TAX

Capital Gains Definition: Profit on an asset.

Profit: the extra money from selling for more than you bought.

A little deeper: From selling price subtract:

  • Costs of sale (brokerage commission, fix up expenses, attorney fees); and
  • Costs of Improvement (new rooms, renovated kitchen, bathroom) but not repairs; and
  • Costs of Purchase; and
  • Original purchase price, or adjusted basis from previous rollover.

Add back:

  • Depreciation taken on previous tax return.

WHAT IS CAPITAL OR WHAT KIND OF PROPERTY IS TAXED?

  • Theory: any thing sold at a profit.
  • Real Life: Stocks, bonds, mutual funds.
  • Real estate, especially investment property
  • Collectibles: art, jewelry, stamps, coins, antique cars Hardly ever: stock cars, jewelry
  • Principal residence: because of $250,000 exemption per spouse.

SPECIAL RULES FOR PRINCIPAL RESIDENCE

$250,000 of gain excluded for each taxpayer if:

      1. It’s a principal residence.
      2. Owned for 2 of last 5 years
      3. Occupied for 2 of last 5 years
      4. No exclusion used in past 2 years.

Marital status is irrelevant.

 

      Joint return:

 

  1. Is doubling of 2 taxpayers;
  2. only 1 needs to own;
  3. but both must use;
  4. neither used exclusion within 2 years.
  • $500,000 available on joint return or 2 individual returns.
  • Related sale of vacant land gets exclusion also.
  • If taxpayer has 2 residences, only 1 is eligible for exclusion: the most principal.
  • 2 year use and ownership need not be concurrent.
  • Use requirement: not affected by vacations.
  • Mixed use must be allocated.
  • $250,000 may be reduced for lower time periods of use, ownership, or previous exclusion.
  • Taxpayer can elect not to exclude gain.

NO LOSSES

Loss on the sale of a personal residence is not deductible, because IRS does not consider it a loss on a transaction entered into for profit. But if taxpayer begins using a personal residence for business purposes and is using it for business purposes at the time of the sale, loss on its sale is allowable as a deduction.

MILITARY SUSPENSION

The Military Family Tax Relief Act of 2003 allows for the suspension of the five-year period during which these two-year use and occupancy requirements must be met. A person in the military (or in the foreign service) may elect to suspend these requirements for a maximum of 10 years, while serving at a duty station that is at least 50 miles from the taxpayer’s principal residence, or while living in government quarters under government orders.

AVOIDING TAX

Virtually the only way to avoid tax on home sale gains exceeding the exemption is to use a “Starker” delayed tax-deferred exchange, as authorized by Internal revenue Code 1031 (a)(3). To qualify, before selling it will be necessary to move out of your principal residence and rent it to tenants. The tax law doesn’t specify the minimum rental time. This would be an ideal situation to lease-option the home to a prospective buyer, but restrict exercise of the purchase option to perhaps six months after moving, thus showing the property has been converted to rental status before its sale. Then it can be sold as a rental property. You might wish to use the tax-deferred exchange sales proceeds to acquire an investment property or perhaps a residential rental property, which will eventually become your personal residence or a second home. However, the acquired property in a tax-deferred exchange must be a rental property at the time of acquisition. Most tax advisors suggest renting it at least six to 12 months (to show rental intent)before converting it to your personal residence by moving in.

SPECIAL, SPECIAL RULES FOR DIVORCED SELLERS

2-Year Use requirement is waived for taxpayer if:

  1. S/he is still an owner;
  2. Spouse or former spouse has use pursuant to court order or separation agreement; and
  3. Other spouse or former spouse uses property as principal residence.

TAX TRAP

If a spouse resides outside of the home, voluntarily, i.e. not pursuant to a divorce judgment or separation agreement for more than two years and the home is then sold, the excluded spouse is not eligible for the exclusion since it was not his/her principal residence for two years prior to the sale, and special rule B does not apply because there is no agreement and no court order.

PARTIAL EXEMPTION

A part of the $250,000 exemption is available for home sales within less than 24 months of ownership and occupancy if the reason for the sale is (a) change of employment location, (b) health reasons for illness treatment or to care for a family member, and c) unforeseen circumstances, which includes death, divorce, unemployment, change of employment leaving the taxpayer unable to pay the mortgage or basic living expenses, multiple births from the same pregnancy, damage to the residence, condemnation or involuntary conversion of the property. The partial exemptions is based on the percentage of the 24-month occupancy time. For example, if you occupied your principal residence for 18 of the required 24 months and sold due to one of the approved reasons, you then will be entitled to 75 percent of the $250,000 or $500,000 principal residence sale exemption.

SPECIAL RULES FOR TRANSFER OF PROPERTY INCIDENT TO DIVORCE

  1. When any capital property, including house, is transferred from one spouse to the other as part of a divorce, there is no tax due upon the transfer.
  2. Capital gains tax is only due upon a later sale to a third party.
  3. New owner owes tax based on original price of house (called “basis” in tax law).
  4. New owner may include former spouse’s residency to meet rule requiring 2 years of use.
  5. New owner cannot opt to treat transfer as taxable event.
  6. This transfer must occur within 6 years of divorce to qualify for non-tax treatment.

WHO GETS TO DEDUCT HOUSING COSTS

Sale Now:

  • Deduction for real estate taxes and mortgage interest on the House, belongs to who ever made the payments.
  • If paid from joint account, either spouse can get deduction, but not both.

Transfer to One Spouse:

  • Only the spouse who owns the House can take the deductions.
  • Maintenance/alimony payments/deduction could be used to get tax breaks for both.

Sale Later:

  • If one spouse is obligated to pay the mortgage payments or property taxes on a residence, double considerations of mortgage interest and property tax deductions become relevant, with alimony as an umbrella concept.

MORTGAGE INTEREST & PROPERTY TAXES:

  1. It is not unusual for one of the spouses to be required to make mortgage payments on the marital home even though he or she does not live in it. Mortgage interest must be paid with respect to a “qualified residence” to be deductible. The Code states that a “qualified residence” must be either the principal residence or “1 other residence of the taxpayer which is . . . used by the taxpayer as a residence…”
  2. It is helpful that the taxpayer is deemed to have used a residence to the extent that s/he or “any member of the family of the taxpayer” uses it. So if the payor’s children live in the home, the requirement is probably satisfied. It is doubtful whether an ex-wife constitutes “any member of the family.”
  3. Even if the payment cannot be deducted as mortgage interest, it may be deductible as alimony.
  4. Payments of mortgage principal are not deductible.

HOUSE SALE & CAPITAL GAINS TAX WORKSHEET

THE HOME TOTAL WIFE’S SHARE HUSBAND’S SHARE
1. Estimated or Actual Selling Price of this House:
2. Brokerage commission (usually 6%):
3. Closing Costs (usually 1%):
4. Amount realized for Capital Gains Tax purposes (Line 1 minus Lines 2 and 3)
5. Mortgage Balance & any other liens: (Not part of capital gain calculation)
6. Net cash before taxes (Line 4 minus Line 5):
CAPITAL GAINS TAX
7. Original Price of this House: or Adjusted Basis from previous rollover:
8. Improvements & Original Closing Costs:
9. Depreciation deducted on previous returns or other decreases in basis:
10. Adjusted Basis of House Sold (Line 7 plus Line 8 minus Line 9):
11. Capital Gain on Sale (Line 4 minus Line 10):
12. Exclusion: $250,000 or $500,000 on joint return
13. Taxable Gain (Line 11 minus Line 12):
14. Capital Gains Tax: (Multiply Line 13 by the Capital Gains Tax rate for your estimated tax bracket)
15. Net Cash After Taxes (Line 6 minus Line 14):

Instructions for Capital Gains Tax Worksheet for Principal Residence

Line 1: Estimate a realistic sales price, or use the actual price if you have sold your house.

Line 2: This item is optional if there’s no actual sale contemplated. But some people still include it if they think a later sale is inevitable.

Line 3: Closing costs for a sale usually include attorney’s fees, transfer tax and little more. But they could include advertising, a survey, and mortgage points paid by the seller. This item is also optional if there’s no actual sale contemplated. But some people still include it if they think a later sale is inevitable.

Line 5: Mortgage amounts are not included in capital gains tax calculations.

Line 7: If this is the first house you’ve owned, put in the gross purchase price. If you’ve owned another house before this one, fill in the adjusted basis from the last sale. This figure is shown on Income Tax form 2119, which you should have filed for the year you purchased this house. If you don’t have the form, you may be able to get it from IRS. Otherwise, you can recalculate it yourself.

Line 8: Improvements are things that add to the permanent value of the house, such as additions, paving a driveway, a new roof, or an intercom system. Usually, maintenance and repairs of existing features do not count as improvements. Also include here the closing costs for buying this house.

Line 9: If your are no longer using this house as a home office or rental, and if you took any depreciation on this house, you put it back here. If you are still using the house for rental or home office, use the next form for that portion of the house.Other decreases are insurance reimbursements for casualty losses, payments for easements or rights of way, residential energy credits and energy conservation subsidies.

Line 11: If this is zero, or a “negative” number, there’s no Capital Gain, no tax, and no problem. Line 6 is your actual net.

Line 12: If you’re still married when the house is sold, you can exclude a total of $500,000. If you’re divorced before the house is sold, you can each exclude $250,000. In order to get this tax free treatment, you must have owned the house for five years, and used it as a principal residence for two of those five years. A spouse who takes title from the other may include the other spouse’s time of ownership in making up the five years of ownership needed to qualify. A spouse who moves, while remaining a joint owner, is allowed to include the other spouse’s time in the house for the two year use rule.

Line 13: If this is zero, or a “negative” number, there’s no Capital Gains tax, and no problem. Line 6 is your actual net.

HOUSE SALE & CAPITAL GAINS TAX WORKSHEET

THE HOME TOTAL WIFE’S SHARE HUSBAND’S SHARE
1. Estimated or Actual Selling Price of this House: $400,000.00 $200,000.00 200,000.00
2. Brokerage commission (usually 6%): 24,000.00 12,000.00 12,000.00
3. Closing Costs (usually 1%): 4,000.00 2,000.00 2,000.00
4. Amount realized for Capital Gains Tax purposes (Line 1 minus Lines 2 and 3) 372,000.00 186,000.00 186,000.00
5. Mortgage Balance & any other liens: (Not part of capital gain calculation) 250,000.00 125,000.00 125,000.00
6. Net cash before taxes (Line 4 minus Line 5): 122,000.00 61,000.00 61,000.00
CAPITAL GAINS TAX
7. Original Price of this House: or Adjusted Basis from previous rollover: $300,000.00
8. Improvements & Original Closing Costs: $5,000.00
9. Depreciation deducted on previous returns or other decreases in basis: $0.00
10. Adjusted Basis of House Sold (Line 7 plus Line 8 minus Line 9): $305,000.00
11. Capital Gain on Sale (Line 4 minus Line 10): $67,000.00 $33,500.00 $33,500.00
12. Exclusion: $250,000 or $500,000 on joint return $250,000.00 $125,000.00 $125,000.00
13. Taxable Gain (Line 11 minus Line 12): $0.00
14. Capital Gains Tax: (Multiply Line 13 by the Capital Gains Tax rate for your estimated tax bracket) $0.00
15. Net Cash After Taxes (Line 6 minus Line 14): 122,000.00 61,000.00 61,000.00

HOUSE SALE & CAPITAL GAINS TAX WORKSHEET
$67,000 GAIN

THE HOME TOTAL WIFE’S SHARE HUSBAND’S SHARE
1. Estimated or Actual Selling Price of this House: $500,000.00
2. Brokerage commission (usually 6%): 30,000.00
3. Closing Costs (usually 1%): 5,000.00
4. Amount realized for Capital Gains Tax purposes (Line 1 minus Lines 2 and 3) 465,000.00
5. Mortgage Balance & any other liens: (Not part of capital gain calculation) 150,000.00
6. Net cash before taxes (Line 4 minus Line 5): 315,000.00
CAPITAL GAINS TAX
7. Original Price of this House: or Adjusted Basis from previous rollover: $200,000.00
8. Improvements & Original Closing Costs: $15,000.00
9. Depreciation deducted on previous returns or other decreases in basis: $0.00
10. Adjusted Basis of House Sold (Line 7 plus Line 8 minus Line 9): $215,000.00
11. Capital Gain on Sale (Line 4 minus Line 10): $250,000.00
12. Exclusion: $250,000 or $500,000 on joint return $250,000.00
13. Taxable Gain (Line 11 minus Line 12): $0.00
14. Capital Gains Tax: (Multiply Line 13 by the Capital Gains Tax rate for your estimated tax bracket) $0.00
15. Net Cash After Taxes (Line 6 minus Line 14): 315,000.00

HOUSE SALE & CAPITAL GAINS TAX WORKSHEET
$500,000 GAIN

THE HOME TOTAL WIFE’S SHARE HUSBAND’S SHARE
1. Estimated or Actual Selling Price of this House: $800,000.00 $400,000.00 400,000.00
2. Brokerage commission (usually 6%): 48,000.00 24,000.00 24,000.00
3. Closing Costs (usually 1%): 8,000.00 4,000.00 4,000.00
4. Amount realized for Capital Gains Tax purposes (Line 1 minus Lines 2 and 3) 744,000.00 372,000.00 372,000.00
5. Mortgage Balance & any other liens: (Not part of capital gain calculation) 150,000.00 75,000.00 75,000.00
6. Net cash before taxes (Line 4 minus Line 5): 594,000.00 297,000.00 297,000.00
CAPITAL GAINS TAX
7. Original Price of this House: or Adjusted Basis from previous rollover: $200,000.00
8. Improvements & Original Closing Costs: $44,000.00
9. Depreciation deducted on previous returns or other decreases in basis: $0.00
10. Adjusted Basis of House Sold (Line 7 plus Line 8 minus Line 9): $244,000.00
11. Capital Gain on Sale (Line 4 minus Line 10): $500,000.00 $250,000.00 $250,000.00
12. Exclusion: $250,000 or $500,000 on joint return $500,000.00 $250,000.00 $250,000.00
13. Taxable Gain (Line 11 minus Line 12): $0.00
14. Capital Gains Tax: (Multiply Line 13 by the Capital Gains Tax rate for your estimated tax bracket) $0.00
15. Net Cash After Taxes (Line 6 minus Line 14): 594,000.00 297,000.00 297,000.00

HOUSE SALE & CAPITAL GAINS TAX WORKSHEET
$685,000 GAIN, $500,000 EXCLUSION

THE HOME TOTAL WIFE’S SHARE HUSBAND’S SHARE
1. Estimated or Actual Selling Price of this House: $999,000.00 $499,500.00 499,500.00
2. Brokerage commission (usually 6%): 59,940.00 29,970.00 29,970.00
3. Closing Costs (usually 1%): 9,990.00 4,995.00 4,995.00
4. Amount realized for Capital Gains Tax purposes (Line 1 minus Lines 2 and 3) 929,070.00 464,535.00 464,535.00
5. Mortgage Balance & any other liens: (Not part of capital gain calculation) 150,000.00 75,000.00 75,000.00
6. Net cash before taxes (Line 4 minus Line 5): 779,070.00 389,535.00 389,535.00
CAPITAL GAINS TAX
7. Original Price of this House: or Adjusted Basis from previous rollover: $200,000.00
8. Improvements & Original Closing Costs: $44,000.00
9. Depreciation deducted on previous returns or other decreases in basis: $0.00
10. Adjusted Basis of House Sold (Line 7 plus Line 8 minus Line 9): $244,000.00
11. Capital Gain on Sale (Line 4 minus Line 10): $685,070.00 $342,535.00 $342,535.00
12. Exclusion: $250,000 or $500,000 on joint return $500,000.00 $250,000.00 $250,000.00
13. Taxable Gain (Line 11 minus Line 12): $185,070.00 $92,535.00 $92,535.00
14. Capital Gains Tax: (Multiply Line 13 by the Tax rate for your tax bracket: 15% Federal & 8% NY State) $42,566.10 $21,283.05 $21,283.05
15. Net Cash After Taxes (Line 6 minus Line 14): 736,503.90 368,251.95 368,251.95

HOUSE SALE & CAPITAL GAINS TAX WORKSHEET
$685,000 GAIN, $250,000 EXCLUSION

THE HOME TOTAL WIFE’S SHARE HUSBAND’S SHARE
1. Estimated or Actual Selling Price of this House: $999,000.00
2. Brokerage commission (usually 6%): 59,940.00
3. Closing Costs (usually 1%): 9,990.00
4. Amount realized for Capital Gains Tax purposes (Line 1 minus Lines 2 and 3) 929,070.00
5. Mortgage Balance & any other liens: (Not part of capital gain calculation) 150,000.00
6. Net cash before taxes (Line 4 minus Line 5): 779,070.00
CAPITAL GAINS TAX
7. Original Price of this House: or Adjusted Basis from previous rollover: $200,000.00
8. Improvements & Original Closing Costs: $44,000.00
9. Depreciation deducted on previous returns or other decreases in basis: $0.00
10. Adjusted Basis of House Sold (Line 7 plus Line 8 minus Line 9): $244,000.00
11. Capital Gain on Sale (Line 4 minus Line 10): $685,070.00
12. Exclusion: $250,000 or $500,000 on joint return $250,000.00
13. Taxable Gain (Line 11 minus Line 12): $435,070.00
14. Capital Gains Tax: (Multiply Line 13 by the Tax rate for your tax bracket: 15% Federal & 8% NY State) $100,066.10
15. Net Cash After Taxes (Line 6 minus Line 14): 679,003.90

IRS REGULATIONS

§ 1.121–1 Exclusion of gain from sale or exchange of a principal residence.

(a) In general.
Section 121 provides that, under certain circumstances, gross income does not include gain realized on the sale or exchange of property that was owned and used by a taxpayer as the taxpayer’s principal residence. Subject to the other provisions of section 121, a taxpayer may exclude gain only if, during the 5-year period ending on the date of the sale or exchange, the taxpayer owned and used the property as the taxpayer’s principal residence for periods aggregating 2 years or more.

(b) Residence—
(1) In general.
Whether property is used by the taxpayer as the taxpayer’s residence depends upon all the facts and circumstances. A property used by the taxpayer as the taxpayer’s residence may include a houseboat, a house trailer, or the house or apartment that the taxpayer is entitled to occupy as a tenant-stockholder in a cooperative housing corporation (as those terms are defined in section 216(b)(1) and (2)). Property used by the taxpayer as the taxpayer’s residence does not include personal property that is not a fixture under local law.

(2) Principal residence.
In the case of a taxpayer using more than one property as a residence, whether property is used by the taxpayer as the taxpayer’s principal residence depends upon all the facts and circumstances. If a taxpayer alternates between 2 properties, using each as a residence for successive periods of time, the property that the taxpayer uses a majority of the time during the year ordinarily will be considered the taxpayer’s principal residence. In addition to the taxpayer’s use of the property, relevant factors in determining a taxpayer’s principal residence, include, but are not limited to— (I) The taxpayer’s place of employment; (ii) The principal place of abode of the taxpayer’s family members; (iii) The address listed on the taxpayer’s federal and state tax returns, driver’s license, automobile registration, and voter registration card; (iv) The taxpayer’s mailing address for bills and correspondence; (v) The location of the taxpayer’s banks; and (vi) The location of religious organizations and recreational clubs with which the taxpayer is affiliated.

(3) Vacant land—
(I) In general.
The sale or exchange of vacant land is not a sale or exchange of the taxpayer’s principal residence unless— (A) The vacant land is adjacent to land containing the dwelling unit of the taxpayer’s principal residence; (B) The taxpayer owned and used the vacant land as part of the taxpayer’s principal residence; (c)) The taxpayer sells or exchanges the dwelling unit in a sale or exchange that meets the requirements of section 121 within 2 years before or 2 years after the date of the sale or exchange of the vacant land; and (D) The requirements of section 121 have otherwise been met with respect to the vacant land.

(ii) Limitations—
(A) Maximum limitation amount.
For purposes of section 121(b)(1) and (2) (relating to the maximum limitation amount of the section 121 exclusion), the sale or exchange of the dwelling unit and the vacant land are treated as one sale or exchange. Therefore, only one maximum limitation amount of $250,000 ($500,000 for certain joint returns) applies to the combined sales or exchanges of vacant land and the dwelling unit. In applying the maximum limitation amount to sales or exchanges that occur in different taxable years, gain from the sale or exchange of the dwelling unit, up to the maximum limitation amount under section 121(b)(1) or (2), is excluded first and each spouse is treated as excluding onehalf of the gain from a sale or exchange to which section 121(b)(2)(A) and § 1.121–2(a)(3)(I) (relating to the limitation for certain joint returns) apply.

(B) Sale or exchange of more than one principal residence in 2-year period.
If a dwelling unit and vacant land are sold or exchanged in separate transactions that qualify for the section 121 exclusion under this paragraph (b)(3), each of the transactions is disregarded in applying section 121(b)(3) (restricting the application of section 121 to only 1 sale or exchange every 2 years) to the other transactions but is taken into account as a sale or exchange of a principal residence on the date of the transaction in applying section 121(b)(3) to that transaction and the sale or exchange of any other principal residence.

(c)) Sale or exchange of vacant land before dwelling unit.
If the sale or exchange of the dwelling unit occurs in a later taxable year than the sale or exchange of the vacant land and after the date prescribed by law (including extensions) for the filing of the return for the taxable year of the sale or exchange of the vacant land, any gain from the sale or exchange of the vacant land must be treated as taxable on the taxpayer’s return for the taxable year of the sale or exchange of the vacant land. If the taxpayer has reported gain from the sale or exchange of the vacant land as taxable, after satisfying the requirements of this paragraph (b)(3) the taxpayer may claim the section 121 exclusion with regard to the sale or exchange of the vacant land (for any period for which the period of limitation under section 6511 has not expired) by filing an amended return.

(4) Examples.
The provisions of this paragraph (b) are illustrated by the following examples:

Example 1.
Taxpayer A owns 2 residences, one in New York and one in Florida. From 1999 through 2004, he lives in the New York residence for 7 months and the Florida residence for 5 months of each year. In the absence of facts and circumstances indicating otherwise, the New York residence is A’s principal residence. A would be eligible for the section 121 exclusion of gain from the sale or exchange of the New York residence, but not the Florida residence.

Example 2.
Taxpayer B owns 2 residences, one in Virginia and one in Maine. During 1999 and 2000, she lives in the Virginia residence. During 2001 and 2002, she lives in the Maine residence. During 2003, she lives in the Virginia residence. B’s principal residence during 1999, 2000, and 2003 is the Virginia residence. B’s principal residence during 2001 and 2002 is the Maine residence. B would be eligible for the 121 exclusion of gain from the sale or exchange of either residence (but not both) during 2003.

Example 3.
In 1991 Taxpayer C buys property consisting of a house and 10 acres that she uses as her principal residence. In May 2005 C sells 8 acres of the land and realizes a gain of $110,000. C does not sell the dwelling unit before the due date for filing C’s 2005 return, therefore C is not eligible to exclude the $110,000 of gain. In March 2007 C sells the house and remaining 2 acres realizing a gain of $180,000 from the sale of the house. C may exclude the $180,000 of gain. Because the sale of the 8 acres occurred within 2 years from the date of the sale of the dwelling unit, the sale of the 8 acres is treated as a sale of the taxpayer’s principal residence under paragraph (b)(3) of this section. C may file an amended return for 2005 to claim an exclusion for $70,000 ($250,000–$180,000 gain previously excluded) of the $110,000 gain from the sale of the 8 acres.

Example 4.
In 1998 Taxpayer D buys ahouse and 1 acre that he uses as his principal residence. In 1999 D buys 29 acres adjacent to his house and uses the vacant land as part of his principal residence. In 2003 D sells the house and 1 acre and the 29 acres in 2 separate transactions. D sells the house and 1 acre at a loss of $25,000. D realizes $270,000 of gain from the sale of the 29 acres. D may exclude the $245,000 gain from the 2 sales.

(c)) Ownership and use requirements
(1) In general.
The requirements of ownership and use for periods aggregating 2 years or more may be satisfied by establishing ownership and use for 24 full months or for 730 days (365 × 2). The requirements of ownership and use may be satisfied during nonconcurrent periods if both the ownership and use tests are met during the 5-year period ending on the date of the sale or exchange.

(2) Use.
(I) In establishing whether a taxpayer has satisfied the 2-year use requirement, occupancy of the residence is required. However, short temporary absences, such as for vacation or other seasonal absence (although accompanied with rental of the residence), are counted as periods of use.
(ii) Determination of use during periods of out-of-residence care. If a taxpayer has become physically or mentally incapable of self-care and the taxpayer sells or exchanges property that the taxpayer owned and used as the taxpayer’s principal residence for periods aggregating at least 1 year during the 5-year period preceding the sale or exchange, the taxpayer is treated as using the property as the taxpayer’s principal residence for any period of time during the 5-year period in which the taxpayer owns the property and resides in any facility (including a nursing home) licensed by a State or political subdivision to care for an individual in the taxpayer’s condition.

(3) Ownership—
(I) Trusts.
If a residence is owned by a trust, for the period that a taxpayer is treated under sections 671 through 679 (relating to the treatment of grantors and others as substantial owners) as the owner of the trust or the portion of the trust that includes the residence, the taxpayer will be treated as owning the residence for purposes of satisfying the 2-year ownership requirement of section 121, and the sale or exchange by the trust will be treated as if made by the taxpayer.

(ii) Certain single owner entities.
If a residence is owned by an eligible entity (within the meaning of § 301.7701–3(a) of this chapter) that has a single owner and is disregarded for federal tax purposes as an entity separate from its owner under § 301.7701–3 of this chapter, the owner will be treated as owning the residence for purposes of satisfying the 2-year ownership requirement of section 121, and the sale or exchange by the entity will be treated as if made by the owner.

(4) Examples.
The provisions of this paragraph (c)) are illustrated by the following examples. The examples assume that § 1.121–3 (relating to the reduced maximum exclusion) does not apply to the sale of the property. The examples are as follows:

Example 1.
Taxpayer A has owned and used his house as his principal residence since 1986. On January 31, 1998, A moves to another state. A rents his house to tenants from that date until April 18, 2000, when he sells it. A is eligible for the section 121 exclusion because he has owned and used the house as his principal residence for at least 2 of the 5 years preceding the sale.

Example 2.
Taxpayer B owns and uses a house as her principal residence from 1986 to the end of 1997. On January 4, 1998, B moves to another state and ceases to use the house. B’s son moves into the house in March 1999 and uses the residence until it is sold on July 1, 2001. B may not exclude gain from the sale under section 121 because she did not use the property as her principal residence for at least 2 years out of the 5 years preceding the sale.

Example 3.
Taxpayer C lives in a townhouse that he rents from 1993 through 1996. On January 18, 1997, he purchases the townhouse. On February 1, 1998, C moves into his daughter’s home. On May 25, 2000, while still living in his daughter’s home, C sells his townhouse. The section 121 exclusion will apply to gain from the sale because C owned the townhouse for at least 2 years out of the 5 years preceding the sale (from January 19, 1997 until May 25, 2000) and he used the townhouse as his principal residence for at least 2 years during the 5- year period preceding the sale (from May 25, 1995 until February 1, 1998).

Example 4.
Taxpayer D, a college professor, purchases and moves into a house on May 1, 1997. He uses the house as his principal residence continuously until September 1, 1998, when he goes abroad for a 1-year sabbatical leave. On October 1, 1999, 1 month after returning from the leave, D sells the house. Because his leave is not considered to be a short temporary absence under paragraph (c))(2) of this section, the period of the sabbatical leave may not be included in determining whether D used the house for periods aggregating 2 years during the 5-year period ending on the date of the sale. Consequently, D is not entitled to exclude gain under section 121 because he did not use the residence for the requisite period.

Example 5.
Taxpayer E purchases a house on February 1, 1998, that he uses as his principal residence. During 1998 and 1999, E leaves his residence for a 2-month summer vacation. E sells the house on March 1, 2000. Although, in the 5-year period preceding the date of sale, the total time E used his residence is less than 2 years (21 months), the section 121 exclusion will apply to gain from the sale of the residence because, under paragraph (c))(2) of this section, the 2-month vacations are short temporary absences and are counted as periods of use in determining whether E used the residence for the requisite period.

(d) Depreciation taken after May 6, 1997—
(1) In general.
The section 121 exclusion does not apply to so much of the gain from the sale or exchange of property as does not exceed the portion of the depreciation adjustments (as defined in section 1250(b)(3)) attributable to the property for periods after May 6, 1997. Depreciation adjustments allocable to any portion of the property to which the section 121 exclusion does not apply under paragraph (e) of this section are not taken into account for this purpose.

(2) Example. The provisions of this paragraph (d) are illustrated by the following example: Example. On July 1, 1999, Taxpayer A moves into a house that he owns and had rented to tenants since July 1, 1997. A took depreciation deductions totaling $14,000 for the period that he rented the property. After using the residence as his principal residence for 2 full years, A sells the property on August 1, 2001. A’s gain realized from the sale is $40,000. A has no other section 1231 or capital gains or losses for 2001. Only $26,000 ($40,000 gain realized—$14,000 depreciation deductions) may be excluded under section 121. Under section 121(d)(6) and paragraph (d)(1) of this section, A must recognize $14,000 of the gain as unrecaptured section 1250 gain within the meaning of section 1(h).

(e) Property used in part as a principal residence—
(1) Allocation required.
Section 121 will not apply to the gain allocable to any portion (separate from the dwelling unit) of property sold or exchanged with respect to which a taxpayer does not satisfy the use requirement. Thus, if a portion of the property was used for residential purposes and a portion of the property (separate from the dwelling unit) was used for non-residential purposes, only the gain allocable to the residential portion is excludable under section 121. No allocation is required if both the residential and non-residential portions of the property are within the same dwelling unit. However, section 121 does not apply to the gain allocable to the residential portion of the property to the extent provided by paragraph (d) of this section.

(2) Dwelling unit.
For purposes of this paragraph (e), the term dwelling unit has the same meaning as in section 280A(f)(1), but does not include appurtenant structures or other property.

(3) Method of allocation.
For purposes of determining the amount of gain allocable to the residential and nonresidential portions of the property, the taxpayer must allocate the basis and the amount realized between the residential and the non-residential portions of the property using the same method of allocation that the taxpayer used to determine depreciation adjustments (as defined in section 1250(b)(3)), if applicable.

(4) Examples. The provisions of this paragraph (e) are illustrated by the following examples:

Example 1. Non-residential use of property not within the dwelling unit.
(I) Taxpayer A owns a property that consists of a house, a stable and 35 acres. A uses the stable and 28 acres for non-residential purposes for more than 3 years during the 5-year period preceding the sale. A uses the entire house and the remaining 7 acres as his principal residence for at least 2 years during the 5- year period preceding the sale. For periods after May 6, 1997, A claims depreciation deductions of $9,000 for the non-residential use of the stable. A sells the entire property in 2004, realizing a gain of $24,000. A has no other section 1231 or capital gains or losses for 2004.
(ii) Because the stable and the 28 acres used in the business are separate from the dwelling unit, the allocation rules under this paragraph (e) apply and A must allocate the basis and amount realized between the portion of the property that he used as his principal residence and the portion of the property that he used for non-residential purposes. A determines that $14,000 of the gain is allocable to the non-residential-use portion of the property and that $10,000 of the gain is allocable to the portion of the property used as his residence. A must recognize the $14,000 of gain allocable to the non-residential-use portion of the property ($9,000 of which is unrecaptured section 1250 gain within the meaning of section 1(h), and $5,000 of which is adjusted net capital gain). A may exclude $10,000 of the gain from the sale of the property.

Example 2.
Non-residential use of property not within the dwelling unit and rental of the entire property.
(I) In 1998 Taxpayer B buys a property that includes a house, a barn, and 2 acres. B uses the house and 2 acres as her principal residence and the barn for an antiques business. In 2002, B moves out of the house and rents it to tenants. B sells the property in 2004, realizing a gain of $21,000. Between 1998 and 2004 B claims depreciation deductions of $4,800 attributable to the antiques business. Between 2002 and 2004 B claims depreciation deductions of $3,000 attributable to the house. B has no other section 1231 or capital gains or losses for 2004.
(ii) Because the portion of the property used in the antiques business is separate from the dwelling unit, the allocation rules under this paragraph (e) apply. B must allocate basis and amount realized between the portion of the property that she used as her principal residence and the portion of the property that she used for non-residential purposes. B determines that $4,000 of the gain is allocable to the non-residential portion of the property and that $17,000 of the gain is allocable to the portion of the property that she used as her principal residence.
(iii) B must recognize the $4,000 of gain allocable to the non-residential portion of the property (all of which is unrecaptured section 1250 gain within the meaning of section 1(h)). In addition, the section 121 exclusion does not apply to the gain allocable to the residential portion of the property to the extent of the depreciation adjustments attributable to the residential portion of the property for periods after May 6, 1997 ($3,000). Therefore, B may exclude $14,000 of the gain from the sale of the property.

Example 3.
Non-residential use of a separate dwelling unit.
(I) In 2002 Taxpayer C buys a 3-story townhouse and converts the basement level, which has a separate entrance, into a separate apartment by installing a kitchen and bathroom and removing the interior stairway that leads from the basement to the upper floors. After the conversion, the property constitutes 2 dwelling units within the meaning of paragraph (e)(2) of this section. C uses the first and second floors of the townhouse as his principal residence and rents the basement level to tenants from 2003 to 2007. C claims depreciation deductions of $2,000 for that period with respect to the basement apartment. C sells the entire property in 2007, realizing gain of $18,000. C has no other section 1231 or capital gains or losses for 2007.
(ii) Because the basement apartment and the upper floors of the townhouse are separate dwelling units, C must allocate the gain between the portion of the property that he used as his principal residence and the portion of the property that he used for nonresidential purposes under paragraph (e) of this section. After allocating the basis and the amount realized between the residential and non-residential portions of the property, C determines that $6,000 of the gain is allocable to the non-residential portion of the property and that $12,000 of the gain is allocable to the portion of the property used as his residence. C must recognize the $6,000 of gain allocable to the non-residential portion of the property ($2,000 of which is unrecaptured section 1250 gain within the meaning of section 1(h), and $4,000 of which is adjusted net capital gain). C may exclude $12,000 of the gain from the sale of the property.

Example 4.
Separate dwelling unit converted to residential use. The facts are the same as in Example 3 except that in 2007 C incorporates the basement of the townhouse into his principal residence by eliminating the kitchen and building a new interior stairway to the upper floors. C uses all 3 floors of the townhouse as his principal residence for 2 full years and sells the townhouse in 2010, realizing a gain of $20,000. Under section 121(d)(6) and paragraph (d) of this section, C must recognize $2,000 of the gain as unrecaptured section 1250 gain within the meaning of section 1(h). Because C used the entire 3 floors of the townhouse as his principal residence for 2 of the 5 years preceding the sale of the property, C may exclude the remaining $18,000 of the gain from the sale of the house.

Example 5.
Non-residential use within the dwelling unit, property depreciated. Taxpayer D, an attorney, buys a house in 2003. The house constitutes a single dwelling unit but D uses a portion of the house as a law office. D claims depreciation deductions of $2,000 during the period that she owns the house. D sells the house in 2006, realizing a gain of $13,000. D has no other section 1231 or capital gains or losses for 2006. Under section 121(d)(6) and paragraph (d) of this section, D must recognize $2,000 of the gain as unrecaptured section 1250 gain within the meaning of section 1(h). D may exclude the remaining $11,000 of the gain from the sale of her house because, under paragraph (e)(1) of this section, she is not required to allocate gain to the business use within the dwelling unit.

Example 6.
Non-residential use within the dwelling unit, property not depreciated. The facts are the same as in Example 5, except that D is not entitled to claim any depreciation deductions with respect to her business use of the house. D may exclude $13,000 of the gain from the sale of her house because, under paragraph (e)(1) of this section, she is not required to allocate gain to the business use within the dwelling unit.

(f) Effective date.
This section is applicable for sales and exchanges on or after Decmeber 24, 2002. For rules on electing to apply the provisions of this section retroactively, see § 1.121–4(j).

§ 1.121–2 Limitations.
(a) Dollar limitations—
(1) In general.
A taxpayer may exclude from gross income up to $250,000 of gain from the sale or exchange of the taxpayer’s principal residence. A taxpayer is eligible for only one maximum exclusion per principal residence.

(2) Joint owners.
If taxpayers jointly own a principal residence but file separate returns, each taxpayer may exclude from gross income up to $250,000 of gain that is attributable to each taxpayer’s interest in the property, if the requirements of section 121 have otherwise been met.

(3) Special rules for joint returns—
(I) In general.
A husband and wife who make a joint return for the year of the sale or exchange of a principal residence may exclude up to $500,000 of gain if— (A) Either spouse meets the 2-year ownership requirements of § 1.121–1(a) and (c)); (B) Both spouses meet the 2-year use requirements of § 1.121–1(a) and c); and (c)) Neither spouse excluded gain from a prior sale or exchange of property under section 121 within the last 2 years (as determined under paragraph (b) of this section).

(ii) Other joint returns.
For taxpayers filing jointly, if either spouse fails to meet the requirements of paragraph (a)(3)(I) of this section, the maximum limitation amount to be claimed by the couple is the sum of each spouse’s limitation amount determined on a separate basis as if they had not been married. For this purpose, each spouse is treated as owning the property during the period that either spouse owned the property.

(4) Examples.
The provisions of this paragraph (a) are illustrated by the following examples. The examples assume that § 1.121–3 (relating to the reduced maximum exclusion) does not apply to the sale of the property. The examples are as follows:

Example 1.
Unmarried Taxpayers A and B own a house as joint owners, each owning a 50 percent interest in the house. They sell the house after owning and using it as their principal residence for 2 full years. The gain realized from the sale is $256,000. A and B are each eligible to exclude $128,000 of gain because the amount of realized gain allocable to each of them from the sale does not exceed each taxpayer’s available limitation amount of $250,000.

Example 2.
The facts are the same as in Example 1, except that A and B are married taxpayers who file a joint return for the taxable year of the sale. A and B are eligible to exclude the entire amount of realized gain ($256,000) from gross income because the gain realized from the sale does not exceed the limitation amount of $500,000 available to A and B as taxpayers filing a joint return.

Example 3.
During 1999, married Taxpayers H and W each sell a residence that each had separately owned and used as a principal residence before their marriage. Each spouse meets the ownership and use tests for his or her respective residence. Neither spouse meets the use requirement for the other spouse’s residence. H and W file a joint return for the year of the sales. The gain realized from the sale of H’s residence is $200,000. The gain realized from the sale of W’s residence is $300,000. Because the ownership and use requirements are met for each residence by each respective spouse, H and W are each eligible to exclude up to $250,000 of gain from the sale of their individual residences. However, W may not use H’s unused exclusion to exclude gain in excess of her limitation amount. Therefore, H and W must recognize $50,000 of the gain realized on the sale of W’s residence.

Example 4.
Married Taxpayers H and W sell their residence and file a joint return for the year of the sale. W, but not H, satisfies the requirements of section 121. They are eligible to exclude up to $250,000 of the gain from the sale of the residence because that is the sum of each spouse’s dollar limitation amount determined on a separate basis as if they had not been married ($0 for H, $250,000 for W).

Example 5.
Married Taxpayers H and W have owned and used their principal residence since 1998. On February 16, 2001, H dies. On September 24, 2001, W sells the residence and realizes a gain of $350,000. Pursuant to section 6013(a)(3), W and H’s executor make a joint return for 2001. All $350,000 of the gain from the sale of the residence may be excluded.

Example 6.
Assume the same facts as Example 5, except that W does not sell the residence until January 31, 2002. Because W’s filing status for the taxable year of the sale is single, the special rules for joint returns under paragraph (a)(3) of this section do not apply and W may exclude only $250,000 of the gain.

(b) Application of section 121 to only 1 sale or exchange every 2 years—
(1) In general. Except as otherwise provided in § 1.121–3 (relating to the reduced maximum exclusion), a taxpayer may not exclude from gross income gain from the sale or exchange of a principal residence if, during the 2-year period ending on the date of the sale or exchange, the taxpayer sold or exchanged other property for which gain was excluded under section 121. For purposes of this paragraph (b)(1), any sale or exchange before May 7, 1997, is disregarded.

(2) Example. The following example illustrates the rules of this paragraph (b). The example assumes that § 1.121–3 (relating to the reduced maximum exclusion) does not apply to the sale of the property. The example is as follows: Example. Taxpayer A owns a townhouse that he uses as his principal residence for 2 full years, 1998 and 1999. A buys a house in 2000 that he owns and uses as his principal residence. A sells the townhouse in 2002 and excludes gain realized on its sale under section 121. A sells the house in 2003. Although A meets the 2-year ownership and use requirements of section 121, A is not eligible to exclude gain from the sale of the house because A excluded gain within the last 2 years under section 121 from the sale of the townhouse. (c)) Effective date. This section is applicable for sales and exchanges on or after December 24, 2002. For rules on electing to apply the provisions of this section retroactively, see § 1.121–4(j).

§ 1.121–3 Reduced maximum exclusion for taxpayers failing to meet certain requirements.
(a) In general. In lieu of the limitation under section 121(b) and § 1.121–2, a reduced maximum exclusion limitation may be available for a taxpayer who sells or exchanges property used as the taxpayer’s principal residence but fails to satisfy the ownership and use requirements described in § 1.121–1(a) and (c)) or the 2-year limitation described in § 1.121–2(b).
(b) through (f) [Reserved]. For further guidance, see § 1.121–3T(b) through (f).
(g) Computation of reduced maximumexclusion.
(1) The reduced maximum exclusion is computed by multiplying the maximum dollar limitation of $250,000 ($500,000 for certain joint filers) by a fraction. The numerator of the fraction is the shortest of the period of time that the taxpayer owned the property during the 5-year period ending on the date of the sale or exchange; the period of time that the taxpayer used the property as the taxpayer’s principal residence during the 5-year period ending on the date of the sale or exchange; or the period of time between the date of a prior sale or exchange of property for which the taxpayer excluded gain under section 121 and the date of the current sale or exchange. The numerator of the fraction may be expressed in days or months. The denominator of the fraction is 730 days or 24 months (depending on the measure of time used in the numerator).

(2) Examples. The following examples illustrate the rules of this paragraph (g):

Example 1. Taxpayer A purchases a house that she uses as her principal residence. Twelve months after the purchase, A sells the house due to a change in place of her employment. A has not excluded gain under section 121 on a prior sale or exchange of property within the last 2 years. A is eligible to exclude up to $125,000 of the gain from the sale of her house (12/24 × $250,000).

Example 2. (I) Taxpayer H owns a house that he has used as his principal residence since 1996. On January 15, 1999, H and W marry and W begins to use H’s house as her principal residence. On January 15, 2000, H sells the house due to a change in W’s place of employment. Neither H nor W has excluded gain under section 121 on a prior sale or exchange of property within the last 2 years.
(ii) Because H and W have not each used the house as their principal residence for at least 2 years during the 5-year period preceding its sale, the maximum dollar limitation amount that may be claimed by H and W will not be $500,000, but the sum of each spouse’s limitation amount determined on a separate basis as if they had not been married. (See § 1.121–2(a)(3)(ii).) (iii) H is eligible to exclude up to $250,000 of gain because he meets the requirements of section 121. W is not eligible to exclude the maximum dollar limitation amount. Instead, because the sale of the house is due to a change in place of employment, W is eligible to claim a reduced maximum exclusion of up to $125,000 of the gain (365/730 × $250,000). Therefore, H and W are eligible to exclude up to $375,000 of gain ($250,000 + $125,000) from the sale of the house.
(h) [Reserved]. For further guidance, see § 1.121–3T(h).
(I) through (k) [Reserved].
(l) Effective date. This section is applicable for sales and exchanges on or after December 24, 2002. For rules on electing to apply the provisions of this section retroactively, see § 1.121–4(j).

§ 1.121–4 Special rules.
(a) Property of deceased spouse—
(1) In general.
For purposes of satisfying the ownership and use requirements of section 121, a taxpayer is treated as owning and using property as the taxpayer’s principal residence during any period that the taxpayer’s deceased spouse owned and used the property as a principal residence before death if— (I) The taxpayer’s spouse is deceased on the date of the sale or exchange of the property; and (ii) The taxpayer has not remarried at the time of the sale or exchange of the property.

(2) Example. The provisions of this paragraph (a) are illustrated by the following example. The example assumes that § 1.121–3 (relating to the reduced maximum exclusion) does not apply to the sale of the property. The example is as follows:
Example. Taxpayer H has owned and used a house as his principal residence since 1987. H and W marry on July 1, 1999 and from that date they use H’s house as their principal residence. H dies on August 15, 2000, and W inherits the property. W sells the property on September 1, 2000, at which time she has not remarried. Although W has owned and used the house for less than 2 years, W will be considered to have satisfied the ownership and use requirements of section 121 because W’s period of ownership and use includes the period that H owned and used the property before death.

(b) Property owned by spouse or former spouse—
(1) Property transferredto individual from spouse or former spouse. If a taxpayer obtains property from a spouse or former spouse in a transaction described in section 1041(a), the period that the taxpayer owns the property will include the period that the spouse or former spouse owned the property.
(2) Property used by spouse or former spouse.
A taxpayer is treated as using property as the taxpayer’s principal residence for any period that the taxpayer has an ownership interest in the property and the taxpayer’s spouse or former spouse is granted use of the property under a divorce or separation instrument (as defined in section 71(b)(2)), provided that the spouse or former spouse uses the property as his or her principal residence.
(c) Tenant-stockholder in cooperative housing corporation.
A taxpayer who holds stock as a tenant-stockholder in a cooperative housing corporation (as those terms are defined in sections 216(b)(1) and (2)) may be eligible to exclude gain under section 121 on the sale or exchange of the stock. In determining whether the taxpayer meets the requirements of section 121, the ownership requirements are applied to the holding of the stock and the use requirements are applied to the house or apartment that the taxpayer is entitled to occupy by reason of the taxpayer’s stock ownership.
(d) Involuntary conversions—
(1) In general. For purposes of section 121, the destruction, theft, seizure, requisition, or condemnation of property is treated as a sale of the property.
(2) Application of section 1033.
In applying section 1033 (relating to involuntary conversions), the amount realized from the sale or exchange of property used as the taxpayer’s principal residence is treated as being the amount determined without regard to section 121, reduced by the amount of gain excluded from the taxpayer’s gross income under section 121. (3) Property acquired after involuntary conversion.
If the basis of the property acquired as a result of an involuntary conversion is determined (in whole or in part) under section 1033(b) (relating to the basis of property acquired through an involuntary conversion), then for purposes of satisfying the requirements of section 121, the taxpayer will be treated as owning and using the acquired property as the taxpayer’s principal residence during any period of time that the taxpayer owned and used the converted property as the taxpayer’s principal residence.

(4) Example. The provisions of this paragraph (d) are illustrated by the following example:
Example. (I) On February 18, 1999, fire destroys Taxpayer A’s house which has an adjusted basis of $80,000. A had owned and used this property as her principal residence for 20 years prior to its destruction. A’s insurance company pays A $400,000 for the house. A realizes a gain of $320,000 ($400,000—$80,000). On August 27, 1999, A purchases a new house at a cost of $100,000. (ii) Because the destruction of the house is treated as a sale for purposes of section 121, A will exclude $250,000 of the realized gain from A’s gross income. For purposes of section 1033, the amount realized is then treated as being $150,000 ($400,000— $250,000) and the gain realized is $70,000 ($150,000 amount realized—$80,000 basis). A elects under section 1033 to recognize only $50,000 of the gain ($150,000 amount realized—$100,000 cost of new house). The remaining $20,000 of gain is deferred and A’s basis in the new house is $80,000 ($100,000 cost—$20,000 gain not recognized). (iii) A will be treated as owning and using the new house as A’s principal residence during the 20-year period that A owned and used the destroyed house.
(e) Sales or exchanges of partial interests—
(1) Partial interests other than remainder interests—
(I) In general.
Except as provided in paragraph (e)(2) of this section (relating to sales or exchanges of remainder interests), a taxpayer may apply the section 121 exclusion to gain from the sale or exchange of an interest in the taxpayer’s principal residence that is less than the taxpayer’s entire interest if the interest sold or exchanged includes an interest in the dwelling unit. For rules relating to the sale or exchange of vacant land, see § 1.121–1(b)(3).
(ii) Limitations—
(A) Maximum limitation amount. For purposes of section 121(b)(1) and (2) (relating to the maximum limitation amount of the section 121 exclusion), sales or exchanges of partial interests in the same principal residence are treated as one sale or exchange. Therefore, only one maximum limitation amount of $250,000 ($500,000 for certain joint returns) applies to the combined sales or exchanges of the partial interests. In applying the maximum limitation amount to sales or exchanges that occur in different taxable years, a taxpayer may exclude gain from the first sale or exchange of a partial interest up to the taxpayer’s full maximum limitation amount and may exclude gain from the sale or exchange of any other partial interest in the same principal residence to the extent of any remaining maximum limitation amount, and each spouse is treated as excluding one-half of the gain from a sale or exchange to which section 121(b)(2)(A) and § 1.121– 2(a)(3)(i)(relating to the limitation for certain joint returns) apply.
(B) Sale or exchange of more than one principal residence in 2-year period.
For purposes of applying section 121(b)(3) (restricting the application of section 121 to only 1 sale or exchange every 2 years), each sale or exchange of a partial interest is disregarded with respect to other sales or exchanges of partial interests in the same principal residence, but is taken into account as of the date of the sale or exchange in applying section 121(b)(3) to that sale or exchange and the sale or exchange of any other principal residence.
(2) Sales or exchanges of remainder interests—
(i) In general. A taxpayer may elect to apply the section 121 exclusion to gain from the sale or exchange of a remainder interest in the taxpayer’s principal residence.
(ii) Limitations—
(A) Sale or exchange of any other interest. If a taxpayer elects to exclude gain from the sale or exchange of a remainder interest in the taxpayer’s principal residence, the section 121 exclusion will not apply to a sale or exchange of any other interest in the residence that is sold or exchanged separately. (B) Sales or exchanges to related parties.
This paragraph (e)(2) will not apply to a sale or exchange to any person that bears a relationship to the taxpayer that is described in section 267(b) or 707(b). (iii) Election. The taxpayer makes the election under this paragraph (e)(2) by filing a return for the taxable year of the sale or exchange that does not include the gain from the sale or exchange of the remainder interest in the taxpayer’s gross income. A taxpayer may make or revoke the election at any time before the expiration of a 3-year period beginning on the last date prescribed by law (determined without regard to extensions) for the filing of the return for the taxable year in which the sale or exchange occurred.

(4) Example. The provisions of this paragraph (e) are illustrated by the following example:
Example. In 1991 Taxpayer A buys a house that A uses as his principal residence. In 2004 A’s friend B moves into A’s house and A sells B a 50% interest in the house realizing a gain of $136,000. A may exclude the $136,000 of gain. In 2005 A sells his remaining 50% interest in the home to B realizing a gain of $138,000. A may exclude $114,000 ($250,000—$136,000 gain previously excluded) of the $138,000 gain from the sale of the remaining interest. (f) No exclusion for expatriates. The section 121 exclusion will not apply to any sale or exchange by an individual if the provisions of section 877(a) (relating to the treatment of expatriates) applies to the individual. (g) Election to have section not apply.
A taxpayer may elect to have the section 121 exclusion not apply to a sale or exchange of property. The taxpayer makes the election by filing a return for the taxable year of the sale or exchange that includes the gain from the sale or exchange of the taxpayer’s principal residence in the taxpayer’s gross income. A taxpayer may make an election under this paragraph (g) to have section 121 not apply (or revoke an election to have section 121 not apply) at any time before the expiration of a 3- year period beginning on the last date prescribed by law (determined without regard to extensions) for the filing of the return for the taxable year in which the sale or exchange occurred.
(h) Residences acquired in rollovers under section 1034.
If a taxpayer acquires property in a transaction that qualifies under section 1034 (section 1034 property) for the nonrecognition of gain realized on the sale or exchange of another property and later sells or exchanges such property, in determining the period of the taxpayer’s ownership and use of the property under section 121 the taxpayer may include the periods that the taxpayer owned and used the section 1034 property as the taxpayer’s principal residence (and each prior residence taken into account under section 1223(7) in determining the holding period of the section 1034 property). (i) [Reserved].
(j) Election to apply regulations retroactively. Taxpayers who would otherwise qualify under §§ 1.121–1 through 1.121–4 to exclude gain from a sale or exchange of a principal residence before December 24, 2002 but on or after May 7, 1997, may elect to apply §§ 1.121–1 through 1.121–4 for any years for which the period of limitation under section 6511 has not expired. The taxpayer makes the election under this paragraph (j) by filing a return for the taxable year of the sale or exchange that does not include the gain from the sale or exchange of the taxpayer’s principal residence in the taxpayer’s gross income. Taxpayers who have filed a return for the taxable year of the sale or exchange may elect to apply the provisions of these regulations for any years for which the period of limitation under section 6511 has not expired by filing an amended return.
(k) Audit protection. The Internal Revenue Service will not challenge a taxpayer’s position that a sale or exchange of a principal residence occurring before December 24, 2002 but on or after May 7, 1997, qualifies for the section 121 exclusion if the taxpayer has made a reasonable, good faith effort to comply with the requirements of section 121. Compliance with the provisions of the regulations project under section 121 (REG–105235–99 (2000–2 C.B. 447)) generally will be considered a reasonable, good faith effort to comply with the requirements of section 121.
(l) Effective date. This section is applicable for sales and exchanges on or after December 24, 2002. For rules on electing to apply the provisions retroactively, see paragraph (j) of this section.

§ 1.121–5 [Removed]
Par. 3. Section 1.121–5 is removed.

Par. 4. Section 1.1398–3 is added to read as follows:
§ 1.1398–3 Treatment of section 121 exclusion in individuals’ title 11 cases.
(a) Scope. This section applies to cases under chapter 7 or chapter 11 of title 11 of the United States Code, but only if the debtor is an individual.
(b) Definition and rules of general application. For purposes of this section, section 121 exclusion means the exclusion of gain from the sale or exchange of a debtor’s principal residence available under section 121.
(c)) Estate succeeds to exclusion upon commencement of case. The bankruptcy estate succeeds to and takes into account the section 121 exclusion with respect to the property transferred into the estate.
(d) Effective date. This section is applicable for sales or exchanges on or after December 24, 2002.
§ 1.121–3T Reduced maximum exclusion for taxpayers failing to meet certain requirements (temporary).
(a) [Reserved] For further guidance, see § 1.121–3(a).
(b) Primary reason for sale or >exchange.
In order for a taxpayer to claim a reduced maximum exclusion under section 121(c)), the sale or exchange must be by reason of a change in place of employment, health, or unforeseen circumstances. A sale or exchange is by reason of a change in place of employment, health, or unforeseen circumstances only if the primary reason for the sale or exchange is a change in place of employment (within the meaning of paragraph (c)) of this section), health (within the meaning of paragraph (d) of this section), or unforeseen circumstances (within the meaning of paragraph (e) of this section). Whether the requirements of this section are satisfied depends upon all the facts and circumstances. If the taxpayer qualifies for a safe harbor described in this section, the taxpayer’s primary reason is deemed to be a change in place of employment, health, or unforeseen circumstances. If the taxpayer does not qualify for a safe harbor, factors that may be relevant in determining the taxpayer’s primary reason for the sale or exchange include (but are not limited to) the extent to which—
(1) The sale or exchange and the circumstances giving rise to the sale or exchange are proximate in time;
(2) The suitability of the property as the taxpayer’s principal residence materially changes;
(3) The taxpayer’s financial ability to maintain the property materially changes;
(4) The taxpayer uses the property as the taxpayer’s residence during the period of the taxpayer’s ownership of the property;
(5) The circumstances giving rise to the sale or exchange are not reasonably foreseeable when the taxpayer begins using the property as the taxpayer’s principal residence; and
(6) The circumstances giving rise to the sale or exchange occur during the period of the taxpayer’s ownership and use of the property as the taxpayer’s principal residence.
(c)) Sale or exchange by reason of a
change in place of employment—
(1) In general. A sale or exchange is by reason of a change in place of employment if, in the case of a qualified individual described in paragraph (f) of this section, the primary reason for the sale or exchange is a change in the location of the individual’s employment.
(2) Distance safe harbor. The primary reason for the sale or exchange is deemed to be a change in place of employment (within the meaning of paragraph (c))(1) of this section) if— (i) The change in place of employment occurs during the period of the taxpayer’s ownership and use of the property as the taxpayer’s principal residence; and (ii) The individual’s new place of employment is at least 50 miles farther from the residence sold or exchanged than was the former place of employment, or, if there was no former place of employment, the distance between the individual’s new place of employment and the residence sold or exchanged is at least 50 miles.
(3) Employment. For purposes of this paragraph (c)), employment includes the commencement of employment with a new employer, the continuation of employment with the same employer, and the commencement or continuation of self-employment.
(4) Examples. The following examples illustrate the rules of this paragraph (c)):
Example 1. A is unemployed and owns a townhouse that she has owned and used as her principal residence since 2002. In 2003 A obtains a job that is 54 miles from her townhouse, and she sells the townhouse. Because the distance between A’s new place of employment and the townhouse is at least 50 miles, the sale is within the safe harbor of paragraph (c))(2) of this section and A is entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 2. B is an officer in the United States Air Force stationed in Florida. B purchases a house in Florida in 2001. In May 2002 B moves out of his house to take a 3- year assignment in Germany. B sells his house in January 2003. Because B’s new place of employment in Germany is at least 50 miles farther from the residence sold than is B’s former place of employment in Florida, the sale is within the safe harbor of paragraph (c))(2) of this section and B is entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 3. C is employed by Employer R at R’s Philadelphia office. C purchases a house in February 2001 that is 35 miles from R’s Philadelphia office. In May 2002 C begins a temporary assignment at R’s Wilmington office that is 72 miles from C’s house, and moves out of the house. In June 2004 C is assigned to work in R’s London office, and as a result, sells her house in August 2004. The sale of the house is not within the safe harbor of paragraph (c))(2) of this section by reason of the change in place of employment from Philadelphia to Wilmington because the Wilmington office is not 50 miles farther from C’s house than is the Philadelphia office. Furthermore, the sale is not within the safe harbor by reason of the change in place of employment to London because C is not using the house as her principal residence when she moves to London. However, C is entitled to claim a reduced maximum exclusion under section 121(c))(2) because, under the facts and circumstances, the primary reason for the sale is the change in C’s place of employment.
Example 4. In July 2002 D buys a condominium that is 5 miles from her place of employment and uses it as her principal residence. In February 2003 D, who works as an emergency medicine physician, obtains a job that is located 51 miles from D’s condominium. D may be called in to work unscheduled hours and, when called, must be able to arrive at work quickly. Therefore, D sells her condominium and buys a townhouse that is 4 miles from her new place of employment. Because D’s new place of employment is only 46 miles farther from the condominium than is D’s former place of employment, the sale is not within the safe harbor of paragraph (c))(2) of this section. However, D is entitled to claim a reduced maximum exclusion under section 121(c))(2) because, under the facts and circumstances, the primary reason for the sale is the change in D’s place of employment.
(d) Sale or exchange by reason of health—
(1) In general. A sale or exchange is by reason of health if the primary reason for the sale or exchange is to obtain, provide, or facilitate the diagnosis, cure, mitigation, or treatment of disease, illness, or injury of a qualified individual described in paragraph (f) of this section, or to obtain or provide medical or personal care for a qualified individual suffering from a disease, illness, or injury. A sale or exchange that is merely beneficial to the general health or well-being of the individual is not a sale or exchange by reason of health.
(2) Physician’s recommendation safe harbor.
The primary reason for the sale or exchange is deemed to be health if a physician (as defined in section 213(d)(4)) recommends a change of residence for reasons of health (as defined in paragraph (d)(1) of this section).

(3) Examples.
The following examples illustrate the rules of this paragraph (d):
Example 1. In 2002 A buys a house that she uses as her principal residence. A is injured in an accident and is unable to care for herself. As a result, A sells her house in 2003 and moves in with her daughter so that the daughter can provide the care that A requires as a result of her injury. Because, under the facts and circumstances, the primary reason for the sale of A’s house is A’s health, A is entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 2. H’s father has a chronic disease. In 2002 H and W purchase a house that they use as their principal residence. In 2003 H and W sell their house in order to move into the house of H’s father so that they can provide the care he requires as a result of his disease. Because, under the facts and circumstances, the primary reason for the sale of their house is the health of H’s father, H and W are entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 3. H and W purchase a house in 2002 that they use as their principal residence. Their son suffers from a chronic illness that requires regular medical care. Later that year their doctor recommends that their son begin a new treatment that is available at a medical facility 100 miles away from their residence. In 2003 H and W sell their house to be closer to the medical facility. Because, under the facts and circumstances, the primary reason for the sale is to facilitate the treatment of their son’s chronic illness, H and W are entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 4. B, who has chronic asthma, purchases a house in Minnesota in 2002 that he uses as his principal residence. B’s doctor tells B that moving to a warm, dry climate would mitigate B’s asthma symptoms. In 2003 B sells his house and moves to Arizona to relieve his asthma symptoms. The sale is within the safe harbor of paragraph (d)(2) of this section and B is entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 5. In 2002 H and W purchase a house in Michigan that they use as their principal residence. H’s doctor tells H that he should get more exercise, but H is not suffering from any disease that can be treated or mitigated by exercise. In 2003 H and W sell their house and move to Florida so that H can increase his general level of exercise by playing golf year-round. Because the sale of the house is merely beneficial to H’s general health, the sale of the house is not by reason of H’s health. H and W are not entitled to claim a reduced maximum exclusion under section 121(c))(2).
(e) Sale or exchange by reason of unforeseen circumstances—
(1) In general. A sale or exchange is by reason of unforeseen circumstances if the primary reason for the sale or exchange is the occurrence of an event that the taxpayer does not anticipate before purchasing and occupying the residence.
(2) Specific event safe harbors. The primary reason for the sale or exchange is deemed to be unforeseen circumstances (within the meaning of paragraph (e)(1) of this section) if any of the events specified in paragraphs (e)(2)(i) through (iii) of this section occur during the period of the taxpayer’s ownership and use of the residence as the taxpayer’s principal residence— (i) The involuntary conversion of the residence; (ii) Natural or man-made disasters or acts of war or terrorism resulting in a casualty to the residence (without regard to deductibility under section 165(h)); (iii) In the case of a qualified individual described in paragraph (f) of this section— (A) Death; (B) The cessation of employment as a result of which the individual is eligible for unemployment compensation (as defined in section 85(b)); (c)) A change in employment or selfemployment status that results in the taxpayer’s inability to pay housing costs and reasonable basic living expenses for the taxpayer’s household (including amounts for food, clothing, medical expenses, taxes, transportation, courtordered payments, and expenses reasonably necessary to the production of income, but not for the maintenance of an affluent or luxurious standard of living);
(D) Divorce or legal separation under a decree of divorce
or separate maintenance; or (E) Multiple births resulting from the same pregnancy; or (iv) An event determined by the Commissioner to be an unforeseen circumstance to the extent provided in published guidance of general applicability or in a ruling directed to a specific taxpayer.

(3) Examples.
The following examples illustrate the rules of this paragraph (e):
Example 1. In 2003 A buys a house inCalifornia. After A begins to use the house as her principal residence, an earthquake causes damage to A’s house. A sells the house in 2004. The sale is within the safe harbor of paragraph (e)(2)(ii) of this section and A is entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 2. H works as a teacher and W works as a pilot. In 2003 H and W buy a house that they use as their principal residence. Later that year W is furloughed from her job for six months. H and W are unable to pay their mortgage during the period W is furloughed. H and W sell their house in 2004. The sale is within the safe harbor of paragraph (e)(2)(iii)(c)) of this section and H and W are entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 3. In 2003 H and W buy a twobedroom condominium that they use as their principal residence. In 2004 W gives birth to twins and H and W sell their condominium and buy a four-bedroom house. The sale is within the safe harbor of paragraph (e)(2)(iii)(E) of this section, and H and W are entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 4. B buys a condominium in 2003 and uses it as his principal residence. B’s monthly condominium fee is $X. Three months after B moves into the condominium, the condominium association decides to replace the building’s roof and heating system. Six months later, B’s monthly condominium fee doubles. B sells the condominium in 2004 because B is unable to pay the new condominium fee along with the monthly mortgage payment. The safe harbors of paragraph (e)(2) of this section do not apply. However, under the facts and circumstances, the primary reason for the sale is unforeseen circumstances, and B is entitled to claim a reduced maximum exclusion under section 121(c))(2).
Example 5. In 2003 C buys a house that he uses as his principal residence. The property is located on a heavily trafficked road. C sells the property in 2004 because the traffic is more disturbing than he expected. C is not entitled to claim a reduced maximum exclusion under section 121(c))(2) because the safe harbors of paragraph (e)(2) of this section do not apply and, under the facts and circumstances, the traffic is not an unforeseen circumstance.
Example 6. In 2003 D and her fiancÉ E buy a house and live in it as their principal residence. In 2004 D and E cancel their wedding plans and E moves out of the house. Because D cannot afford to make the monthly mortgage payments alone, D and E sell the house in 2004. The safe harbors of paragraph (e)(2) of this section do not apply. However, under the facts and circumstances, the primary reason for the sale is unforeseen circumstances, and D and E are each entitled to claim a reduced maximum exclusion under section 121(c))(2).
(f) Qualified individual. For purposes of this section, qualified individual means—
(1) The taxpayer;
(2) The taxpayer’s spouse;
(3) A co-owner of the residence;
(4) A person whose principal place of abode is in the same household as the taxpayer; or
(5) For purposes of paragraph (d) of this section, a person bearing a relationship specified in sections 152(a)(1) through 152(a)(8) (without regard to qualification as a dependent) to a qualified individual described in paragraphs (f)(1) through (4) of this section, or a descendant of the taxpayer’s grandparent.
(g) [Reserved]. For further guidance, see § 1.121–3(g).
(h) Election to apply regulations Taxpayers who would otherwise qualify under this section to exclude gain from a sale or exchange before December 24, 2002 but on or after May 7, 1997, may elect to apply all of the provisions of this section for any years for which the period of limitations under section 6511 has not expired. The taxpayer makes the election under this paragraph (h) by filing a return for the taxable year of the sale or exchange that does not include the gain from the sale or exchange of the taxpayer’s principal residence in the taxpayer’s gross income. Taxpayers who have filed a return for the taxable year of the sale or exchange may elect to apply all the provisions of this section for any years for which the period of limitations under section 6511 has not expired by filing an amended return.
(i) through (j) [Reserved]. See § 1.121– 3(i) through (j). (k) Audit protection. The Internal Revenue Service will not challenge a taxpayer’s position that a sale or exchange of a principal residence that occurred before December 24, 2002 but on or after May 7, 1997, qualifies for the reduced maximum exclusion under section 121(c)) if the taxpayer has made a reasonable, good faith effort to comply with the requirements of section 121(c)) and if the sale or exchange otherwise qualifies under section 121.
(l) Effective date. For the applicability of this section, see § 1.121–3(l).

ANSWERS TO TRUE/FALSE QUESTIONS

Example #5: Bob and Sue decided to split the sheets. In December 1998, Bob moved out of the home that they had both purchased in 1997. The divorce proceedings got ugly and complicated, and dragged on and on. While still legally married, Bob and Sue sold the home in November 2000. And, even though they filed a joint tax return for 2000, they will not receive the benefit of the full exclusion. Why? Because Bob did not use the home as his principal residence for at least /two of the five years prior to the sale…

Is this conclusion correct?

Yes, but not for the reason stated. Bob would get no exemption because he was not living outside of the house by agreement or court order.

More facts: House purchase price: $200,000. Improvements cost $50,000. Sales Price: $700,000. Mortgage pay-off: $150,000.

Is Sue’s gain exempt?

Yes, she meets all of the requirements.

Is Bob’s gain exempt?

No, see above.

TRUE OR FALSE?

Husband moved out, so it’s not his principal residence, so he must pay capital gains tax?

No, special rule protects divorcing spouse, if there’s agreement or court order.

At age 55, you get a $125,000 capital gains tax exemption?

No, this is old law.

If you buy a new house, you can “roll-over” the capital gain and avoid the tax?

No, this is also old law.

Our mortgage is so high, there’s no money left. Do we have topay capital gains tax?

Maybe, capital gains tax is not related to mortgage amounts.

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