The Real Deal - June 2015

Date: June 25, 2015

Tax Tangles: Real Estate Agents (But Not Mortgage Brokers) May Qualify As Real Estate Professionals
By: Michael J. Grace, Esq. 

This installment of Tax Tangles highlights a legal memorandum in which the IRS recently concluded that a real estate agent may qualify as a “Real Estate Professional” enabling income and losses from rental real estate  to escape being “passive” for federal income tax purposes. 

Readers interested in learning more about this subject or other tax issues affecting the real estate industry may contact Michael Grace, Counsel in our Washington, DC office, at 202-659-6776 or

To qualify as a real estate professional, an individual must work substantial hours in one or more “real property trades or businesses“ including, for example, development, construction, and management. Code Section 469(c)(7) details the rules and requirements; the Example below illustrates them.  

For particular federal income tax purposes, qualifying real estate professionals may have non-passive income and losses from rental real estate activities in which they materially participate. Unlike rental income and losses generally, the items are not automatically passive. If a qualifying taxpayer materially participates, then rental real estate losses are not subject to the passive activity limitations (Internal Revenue Code Section 469), and rental real estate income is not subject to the 3.8% surtax on net investment income (Code Section 1411). 

Recent Development 

Agreeing with at least one court, the IRS, in a recently released legal memorandum, concluded that a real estate agent who brings together buyers and sellers may be engaged in a real property trade or business and thus may qualify as a real estate professional. The IRS also concluded that a mortgage broker cannot be a real estate professional. See ILM 201504010 (dated December 17, 2014 but only recently released). 


Husband and Wife file joint federal income tax returns. They report income and losses from real estate rental properties. 

Husband works in a business having nothing to do with real estate. He also spends more than 500 hours during the year managing the rental properties.  

Wife spends no time on the rental properties. She works full time as a real estate agent representing individuals selling and purchasing real estate. 

Assuming that Wife works as a real estate agent during the year more than 750 hours and more than 50% of her working time, she qualifies as a real estate professional. Because Husband and Wife file joint tax returns, Wife being a real estate professional qualifies both spouses as such. As a result, the couples income and losses from their rental real estate activities are not passive if either spouse materially participates in them. 

By devoting more than 500 hours to the rental activities, Husband materially participates in them. Consequently, the income and losses the couple report on their joint returns are not passive. 

Assume, for example, that in 2015 the rental properties generate net losses. They are not passive losses. Not limited to passive income, the losses can offset any income on the joint returns including husband’s salary and wife’s real estate commissions. 

Assume that in 2016 the rental properties generate net income. It is not passive income. The rental income cannot be sheltered by any passive losses. Unlike rents generally, however, the income is not subject to the 3.8% surtax on net investment income.

Legal Pronouncements

In a court case preceding ILM 201504010, the United States Tax Court acknowledged the issue of whether a real estate agent may qualify as a real estate professional but saw no need to decide the issue under the particular facts before it. Hoskins v. Commissioner, TC Memo 2013-36. However, a federal district court in California has concluded that a real estate agent may qualify as a real estate professional. Gragg v. United States, 2014 TNT 63-15 (N.D. Calif. 2014). 

Cautions and Trend

The IRS legal memorandum (ILM 201504010) was written to address issues raised in the IRS’ examining a particular taxpayer’s return. Technically, the memorandum does not represent legal precedent on which any other taxpayers may rely. Other courts may not necessarily agree with the memorandum or the court’s holding in Gragg. Nevertheless, the memorandum and relevant court cases signal a trend toward allowing real estate agents to qualify as real estate professionals with the favorable results previously described. 

The Baltimore County Zoning Map Process Is Here Again
By: John B. Gontrum, Esq.

Baltimore County’s quadrennial comprehensive zoning map process (CZMP) begins this September 1 and like the last few zoning cycles the process will take a year to complete.

What You Need to Know:

  • Before beginning surveys and property descriptions - discuss with Planning Department 
  • Simplified fee structure has been proposed
  • Filings cannot be withdrawn once filed
  • Multiple parcels may be included as one filing
  • Discounted fee for filing during September 2015

Key Dates:

  • Sept. 1 – Oct. 15, 2015 – Open Filing Period
  • October 2015 – Planning Board members raise zoning map issues 
  • November 2015 – County Council raise zoning map issues
  • February 2016 – Planning staff recommendations will be issued
  • March 2016 – Series of public hearings before Planning Board
  • June 2016 – Series of public hearings before County Council

Although the filing fees have not yet been finalized, a simplified and possibly less expensive filing fee structure than in previous cycles has been proposed and is awaiting approval by the County Council.   Fees would be based on location of the property proposed for change either inside or outside the Urban/Rural Demarcation Line.  Unlike prior years, multiple parcels may be included as one filing.   There will be a discounted fee for filing during September 2015. Planning has less staff devoted to this zoning map cycle than in previous years, and reviews will include a team approach.

The Planning Department reports that few potential issues have been brought to its attention at this time.   It is wise, however, to begin the process early by sitting down with the Planning Department to discuss items which may have a bearing on consideration of rezoning.  This should be done prior to beginning to expend sums for surveys and descriptions of the property.   There are a myriad of factors which are considered in weighing a zoning map change, and prior to entering into the process it is wise to understand what issues may arise.   Comprehensive and Community Plans, basic services maps, and property history are just a few of the factors which should be reviewed.

It also is important to consider that once a zoning issue is filed it cannot be withdrawn.   Also, once filed, any zone may be considered for the property at issue and not just the one sought.   It is possible for a property seeking a more intense zone to end up with a less intense zone than it currently enjoys.      

Ultimately, rezoning issues are determined by the full County Council by votes on issues within each council district.  Although the full County Council votes on all of the issues, local council representatives traditionally have a huge say in the issues within a particular district.     

If you believe you might be interested in proposing a zoning map change, please do not hesitate to contact one of the members of the land use group to discuss.   Any one of us would be glad to meet with you to discuss the process and issues to consider.