IRS Expands and Finalizes Section 199A Safe Harbor for Rental Real Estate

The IRS finalized a safe harbor revenue procedure under which a rental real estate enterprise will be treated as a trade or business for purposes of Code Sec. 199A. The procedure includes several changes from a proposed revenue procedure previously issued in Notice 2019-7, such as (1) allowing taxpayers to treat their interests in residential or commercial properties as separate rental real estate enterprises in one year and then treating their interests in all similar residential or all similar commercial properties as a single rental real estate enterprise in a future year; (2) allowing taxpayers with rental real estate enterprises that have been in existence for four or more years to qualify immediately under the 250-hour rental services test if the rental services have been provided in three of the five consecutive tax years ending with the tax year at issue; and (3) allowing an interest in mixed-use property to be treated as a single rental real estate enterprise or bifurcated into separate residential and commercial interests. Rev. Proc. 2019-38.