Monday, August 25, 2008

Is Your Hobby a For-Profit Endeavor?

Take on IRSIs Your Hobby a For-Profit Endeavor?

FS-2008-23, June 2008

The Internal Revenue Service reminds taxpayers to follow appropriate guidelines when determining whether an activity is engaged in for profit, such as a business or investment activity, or is engaged in as a hobby.

Internal Revenue Code Section 183 (Activities Not Engaged in for Profit) limits deductions that can be claimed when an activity is not engaged in for profit. IRC 183 is sometimes referred to as the “hobby loss rule.”

Taxpayers may need a clearer understanding of what constitutes an activity engaged in for profit and the tax implications of incorrectly treating hobby activities as activities engaged in for profit. This educational fact sheet provides information for determining if an activity qualifies as an activity engaged in for profit and what limitations apply if the activity was not engaged in for profit.

Is your hobby really an activity engaged in for profit?

In general, taxpayers may deduct ordinary and necessary expenses for conducting a trade or business or for the production of income. Trade or business activities and activities engaged in for the production of income are activities engaged in for profit.

The following factors, although not all inclusive, may help you to determine whether your activity is an activity engaged in for profit or a hobby:

Does the time and effort put into the activity indicate an intention to make a profit?
Do you depend on income from the activity?
If there are losses, are they due to circumstances beyond your control or did they occur in the start-up phase of the business?
Have you changed methods of operation to improve profitability?
Do you have the knowledge needed to carry on the activity as a successful business?
Have you made a profit in similar activities in the past?
Does the activity make a profit in some years?
Do you expect to make a profit in the future from the appreciation of assets used in the activity?

An activity is presumed for profit if it makes a profit in at least three of the last five tax years, including the current year (or at least two of the last seven years for activities that consist primarily of breeding, showing, training or racing horses).

If an activity is not for profit, losses from that activity may not be used to offset other income. An activity produces a loss when related expenses exceed income. The limit on not-for-profit losses applies to individuals, partnerships, estates, trusts, and S corporations. It does not apply to corporations other than S corporations.

What are allowable hobby deductions under IRC 183?

If your activity is not carried on for profit, allowable deductions cannot exceed the gross receipts for the activity.

Deductions for hobby activities are claimed as itemized deductions on Schedule A, Form 1040. These deductions must be taken in the following order and only to the extent stated in each of three categories:

Deductions that a taxpayer may claim for certain personal expenses, such as home mortgage interest and taxes, may be taken in full.
Deductions that don’t result in an adjustment to the basis of property, such as advertising, insurance premiums and wages, may be taken next, to the extent gross income for the activity is more than the deductions from the first category.
Deductions that reduce the basis of property, such as depreciation and amortization, are taken last, but only to the extent gross income for the activity is more than the deductions taken in the first two categories.

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Stephen Martinez E.A.

Tax Office

Lone Accountant Takes on IRS and Wins

Take on IRSLone Accountant Takes on IRS and Wins


Aug. 25, 2008 (Associated Press) -- WASHINGTON - It took seven years, but Charles Ulrich did something many people dream about, but few succeed at: He beat the IRS in a tax dispute.

Not only that, but tax experts say potentially millions of other taxpayers could benefit from his victory.

The accountant from Baxter, Minn., challenged the method the IRS has used for more than 20 years to tax shares and cash distributed by mutual life insurance firms to their policyholders when they reorganize as public companies.

A federal court recently agreed with his interpretation.

"There's a tremendous amount of money at stake," said Robert Willens, a New York City-based tax analyst at Robert Willens LLC. "Tens of thousands of people could be in line for a refund."

Don Alexander, an IRS commissioner in the 1970s and now a tax attorney in Washington, said while it's not unusual for individuals to take on the agency, "most of them lose."

Alexander called it "quite a significant case."

The dispute arose when more than 30 mutual life insurance companies became publicly traded corporations in the late 1990s and earlier this decade, in a process known as "demutualization."

Mutual companies are owned by their policyholders, so the companies provided stock and cash to compensate them for the loss of their ownership interests when they went public.

All told, roughly 30 million policyholders received distributions, Ulrich estimates. MetLife Inc. provided over $7 billion of stock to about 11 million policyholders when it went public in 2000, while Prudential distributed $12.5 billion in stock to another 11 million.

The IRS held that the recipients hadn't paid anything for the shares and owed taxes on the full amount when the shares were sold. Cash distributions also were fully taxable, the IRS said.

That didn't sound right to Ulrich, 72, an accountant for 49 years. He began researching the issue in 2001, when he received shares from two companies, Prudential and Indianapolis Life.

Ulrich concluded that policyholders had paid for their ownership rights through their premiums so the distributions should have been tax-free.

That could make a significant difference in what a taxpayer owes. If a company distributed shares worth $30 and a recipient subsequently sold them at $32, under the IRS' view they would pay taxes on all $32. Under Ulrich's interpretation, they would owe taxes only on the $2 per share gain.

In 2003, Ulrich publicized his views by contacting tax and insurance experts and setting up a Web site.

"Largely I was regarded as a lunatic," he said, who "would never prevail against the IRS."

Still, some people who'd paid taxes contacted Ulrich and asked him to file refund requests, which he did, for a fee. Some of those refunds were granted, he said. Tax experts say the IRS doesn't always closely scrutinize small refunds.

One of his clients, Jean Prevost and her husband, Jim, who live near Minneapolis, received a refund of almost $1,500 in federal and state taxes in 2003.

"It wasn't a huge amount of money, but it was ours," she said.

But the IRS wasn't pleased with Ulrich, accusing him of promoting abusive tax shelters and demanding the names of his clients, which he said he refused to provide.

The agency backed off in 2004 with help from the IRS's Taxpayer Advocate office, Ulrich said.

IRS spokesman Bruce Friedland said the agency is prohibited from commenting on its interactions with taxpayers.

One of Ulrich's clients, Eugene Fisher, a trustee for a Baltimore, Md.-based trust, sued the IRS in February 2004 after being denied a refund.

Judge Francis Allegra of the Court of Federal Claims in Washington sided with Fisher and called the IRS' view "illogical" in an Aug. 6 decision. He ordered the agency to refund $5,725 in taxes plus interest to the trust overseen by Fisher.

It's not clear how many people could benefit from the ruling. Many of the 30 million policyholders are probably too late to seek refunds, since claims must be filed within three years of the April 15 tax deadline. That means the statute of limitations for taxes paid for 2004 ran out April 15, 2008.

Many individual taxpayers may not have enough at stake to go to the trouble, said Burgess Raby, a Tempe, Ariz.-based attorney who represented Fisher. Still, millions of policyholders could benefit from the court's ruling, he said.

Raby credits Ulrich with being the driving force behind the issue.

"The genesis for this was Chuck's real feeling that this was an unfair position" by the IRS, Raby said.

The government could appeal the ruling and likely will fight future refund claims, perhaps hoping for a different outcome in a separate court, tax experts said.

Charles Miller, a spokesman for the Justice Department, said the government hasn't yet decided whether to appeal.

Still, taxpayers should request refunds if they're eligible, the tax experts said, because even if the IRS rejects the claim, doing so extends the deadline for a potential refund for two more years.

Ulrich will prepare refund requests for interested taxpayers, for a fee, and has posted additional information at his Web site, ->

But he said the principle is more important to him.

"I think it's important that taxpayers' rights be protected," he said. "We should have had a Boston Tea Party over this."

© Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Stephen Martinez E.A.

Tax Office

IRS Plans New Taxpayer Warning Letters

Warning LetterIRS Plans New Taxpayer Warning Letters

Washington, D.C. (Aug. 22, 2008)
By WebCPA staff

The Internal Revenue Service is planning to increase its enforcement efforts by sending out warning letters to a larger group of taxpayers who may be underreporting their income.

The new warning letter, the CP2057, will differ from the CP2000 letter that the IRS has been sending out for years, according to The Wall Street Journal. The earlier type of letter included suggestions for proposed changes to areas such as income, credits and deductions, while the CP2057 will mainly ask taxpayers to double-check parts of the return and file an amended return if they have made a mistake. Unlike the CP2000, it will not include the exact amount owed.

The IRS will begin testing the new automated notices later this year and expand their use if they succeed in collecting extra revenue.

"The Automated Soft Notice (CP2057) is a test involving approximately 31,000 notices mailed this fall," said IRS spokesman Bruce Friedland in an e-mail. "If the test results indicate limited underreporting in the subsequent year and self-correction of unreported income, we hope to expand the use of this notice. A very small portion of our staff is assisting in this test - again, it is designed as an automated notice. The CP2057 asks the taxpayer to file an amended return, or work with the document issuer to correct erroneous documents."

The warning letters are part of the IRS's ongoing effort to close the estimated $300 billion tax gap by looking for ways to identify people who may be dodging taxes or miscalculating. The automatically generated letters will leverage computer technology for matching information on the returns that taxpayers submit with other forms the IRS receives, such as 1099 and K1 documents, in an effort to find more discrepancies and abuses.

"We believe this approach will allow taxpayers to correct underreporting issues without having to correspond extensively with the IRS, thus benefiting both the taxpayer and the service," said Friedland. "We continue to issue CP2000 notices (an important component of our enforcement efforts) and expect to continue issuing these notices as appropriate, even if we expand the use of CP2057."

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Stephen Martinez E.A.

Tax Office

More than 8,000 California businesses are being notified of impending visits from State Board of Equalization

AuditorsState Board of Equalization News Release
State Board of Equalization • 450 N Street, Sacramento, CA 95814 • 800-400-7115

Ramon J. Hirsig
Executive Director
NR 64-08-G

For Immediate Release Contact: Anita Gore
August 21, 2008 916-327-8988

Board of Equalization Announces Enhanced Compliance Effort

Businesses Get Answers Regarding New Statewide Outreach Program
Sacramento – More than 8,000 businesses in seven different zip codes throughout the state are being notified this week of impending visits from Board of Equalization (BOE) specialists who will be canvassing the areas to ensure the businesses are properly registered and paying taxes.

This new enhanced compliance effort is slated to begin mid-September. The first areas to get visits under this program are: 94608 - Emeryville; 95826 - Sacramento; 95110 - San Jose; 91406- Van Nuys; 90505 - Torrance; 92701 - Santa Ana; and 92570 - Perris.

The BOE held an advisory meeting today with business representatives about a new statewide compliance enhancement program to be launched in the coming weeks. The meeting gave businesses and their representatives a chance to learn about the new program, get their questions answered, and voice any concerns. The BOE meeting is one of many outreach efforts to inform businesses of an upcoming increase in door-to-door visits by BOE representatives statewide.

The goal of these visits by BOE specialists is to ensure all businesses are properly registered so there is no an unfair business advantage over those businesses that are properly registered and reporting their taxes/fees. It is estimated that over three percent of businesses operating in California do so without the appropriate permits or licenses that allow for collection of sales and use tax, as well as other taxes and fees. A recent two-year pilot Business License Inspection Program showed this to be an accurate estimate. Non-compliance is a part of the more than $2 billion sales and use tax gap.

The BOE specialists will conduct checks for seller’s permits of all storefronts and other known business locations in each neighborhood. Initially, there will be seven teams located throughout the state that will begin their door-to-door visits based on zip code. Registered retailers will be checked for appropriate permits and licenses as well as service industry businesses, especially if the particular service industry also sells taxable retail items. Those businesses found to be out of compliance will be given instructions on how to register with the BOE and given information about other necessary licenses.

The advisory meeting in Sacramento was the first of two meetings intended to educate businesses throughout California on what a visit from a BOE specialist will entail. A second meeting will be held in the BOE’s Culver City Board Room on August 26, 2008.

The five-member California State Board of Equalization is a publicly elected tax board. The BOE collects more than $53 billion annually in taxes and fees supporting state and local government services. It hears business tax appeals, acts as the appellate body for franchise and personal income tax appeals, and serves a significant role in the assessment and administration of property taxes.

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Stephen Martinez E.A.

Tax Office

Tuesday, August 19, 2008

¿Dónde se Puede Reportar Actividad Fraudulenta de Impuestos?

Fraude¿Dónde se Puede Reportar Actividad Fraudulenta de Impuestos?

Si sospecha o tiene conocimiento de que un individuo o corporación no está cumpliendo con la ley de impuestos, usted debe reportar esa actividad. El reportar una actividad sospechosa o fraudulenta se puede hacer por teléfono, a través del correo, o visitando la oficina local de IRS.

Para reportar actividades sospechosas de fraude contributivo, llene la Forma 3949-A o escriba una carta que contenga información similar, y envíela por correo al Internal Revenue Service, Fresno, CA 93888.

Las oficinas de Servicio al Contribuyente del IRS

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Esteban Martinez

Tax Office

Child of Divorced or Separated Parents Will Be Treated As a Dependent of Both

Child CustodyIRS Provides Circumstances Under Which a Child of Divorced or Separated Parents Will Be Treated As a Dependent of Both (Rev. Proc. 2008-48)

The IRS has provided guidance regarding when a child of divorced or separated parents will be treated as a dependent of both parents. Under Code Sec. 152(e), a child of divorced or separated parents will only be treated as a dependent of the noncustodial parent for purposes of the dependency exemption only if the custodial parent provides a written declaration that he or she will not claim the child as a dependent for the tax year and the noncustodial parent attaches the declaration to his or her return. Many other provisions that provide for benefits and exclusions attributable to the dependents of a taxpayer reference the rules of Code Sec. 152, including its use in relation to the children of divorced or separated parents. However, under this procedure, the IRS will treat the child as a dependent of both parents for purposes of several provisions relating to medical expenses, medical coverage and employee benefits, regardless of whether or not the custodial parent released the claim of the exemption.

Specifically, the IRS will treat a child as a dependent of both parents, without a declaration of the custodial parent, under the following circumstances:

--the exclusion from gross income of certain employer reimbursements of expenses incurred for the medical care of the employee's child under Code Sec. 105(b);

--the exclusion from gross income of employer contributions to an accident or health plan on behalf of the employee's children under Code Sec. 106(a) and Reg. §1.106-1;

--the exclusion from gross income of fringe benefits qualifying as no-additional-cost services or qualified employee discounts under Code Sec. 132(a) that are treated as used by the employee due to use by an employee's child under Code Sec. 132(h)(2);

--the deduction of medical expenses of the taxpayer's child under Code Sec. 213(a); and

--the exclusions under Code Secs. 220(f)(1) and 223(f)(1) for distributions from Archer Medical Savings Accounts and Health Savings Accounts, respectively, if the distributions are used to pay qualified medical expenses of the account beneficiary's child.

The guidance is effective August 18, 2008, but taxpayers may choose to apply the guidance to any tax year beginning after December 31, 2004, for which a credit or refund can still be claimed under Code Sec. 6511.

Rev. Proc. 2008-48, 2008FED ¶46,544

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Stephen Martinez

Tax Office

Inventor sues California

CollectionsInventor Wins $388M Jury Award in Tax Case

Las Vegas (Aug. 19, 2008)

By WebCPA staff


Inventor Gilbert P. Hyatt received a jury award of more than $388 million after suing California's Franchise Tax Board for its conduct in auditing him more than a decade ago.

The Nevada jury awarded Hyatt with damages based on torts committed by the FTB while auditing Hyatt in 1991 and 1992, when he received substantial sums of money for licensing his more than 70 patents.

The jury returned a unanimous liability and compensatory damage verdict on Aug. 6, 2008, of more than $138 million for fraud, intentional infliction of emotional distress, abuse of process, breach of confidential relationship, and invasion of privacy.

On August 12, the jury unanimously determined that the FTB's conduct warranted punitive damages. On August 14, the jury rendered its verdict assessing $250 million in punitive damages against the FTB. The FTB is expected to appeal the verdict.

The lawsuit has been progressing for more than 10 years. Hyatt, who received a microprocessor patent in 1990, sued California's tax assessment and collection agency, alleging the agency audited him in bad faith and committed fraud and other intentional torts during its audit. The FTB claimed he was a California resident in 1991 and part of 1992, assessing him millions of dollars in income taxes for those years, including fraud penalties.

After the case was filed in Nevada in 1998, California took the case to the Nevada Supreme Court and then to the U.S. Supreme Court, arguing that Nevada courts could not adjudicate Hyatt's claims against the California FTB in Nevada. The U.S. Supreme Court disagreed and unanimously upheld the Nevada Supreme Court's ruling that Hyatt's intentional tort claims could proceed to trial in Nevada.

"The entire case -- from start to finish -- is unprecedented," said Mark A. Hutchison, a founding partner of Hutchison & Steffen and lead counsel for Hyatt. He worked with Peter Bernhard of the law firm Bullivant Houser Bailey and Don Kula of Perkins Coie on the case.

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Stephen Martinez

Tax Office

Monday, August 18, 2008

Tax Debt Firm to Pay $1.5M in Restitution

Con ManMissouri AG Sues Tax Resolution Firm

Jefferson City, Mo. (Aug. 18, 2008)
By WebCPA staff

The Missouri attorney general has filed suit against tax representation chain JK Harris & Co., saying the firm did not provide the services promised to resolve its clients' state and federal tax problems.

The Missouri lawsuit follows on the heels of a $1.5 million settlement by the chain with 18 other state attorneys general in June, and a $6 million settlement of a class-action lawsuit last year (see Tax Debt Firm to Pay $1.5M in Restitution). The AG's suit is seeking full restitution from JK Harris for Missouri customers who paid up to $4,500 for the services they did not receive.

"JK Harris promises it can help consumers who are having tax problems, but the Missourians who complained to my office told a different story - one of unreturned phone calls, lost paperwork and a worse financial situation than when they started," said Missouri AG Jay Nixon in a statement.

A spokesman for the firm defended its practices. "JK Harris has become the nation's largest tax resolution firm in the United States, having served over 225,000 customers since 1997 because of proven results and satisfied customers," said a statement from Josh Baker, executive vice president of client advocacy at JKH. "Customer complaints are taken seriously at JK Harris. At this time, we have not been served with a lawsuit, nor have we read details in the complaint, so we cannot comment on any specific filings. What we can say is our customers and their satisfaction are our top priority."

In a recent interview, CEO John K. Harris discussed the settlement with the 18 attorneys general (see Industry Leader Q&A with John K. Harris). "No question we had some faults," he said. "I agree that we did and we corrected all that and we are trying to lead the industry in the direction of full disclosure, honesty and integrity in the business."

In the Missouri case, consumers complained to Nixon's office that after they paid for debt relief services, JKH failed to follow the process it advertised in handling customer cases. Consumers also reported that they often had to resend their financial disclosure information and supporting documentation because JKH kept losing their paperwork, and they would learn that their assigned case specialists were no longer working on their files only by calling JKH for updates. Consumers who requested full refunds were denied.

Also named as a defendant in Nixon's lawsuit was a business affiliated with JK Harris called Professional Fee Financing Associates LLC, which makes consumer credit loans as part of the JKH contract process. Nixon said PFFA's forms fail to disclose crucial information about finance charges, payment schedules, the total number of payments and the total price that consumers will have to pay. PFFA also does not have the required certificate of registration from the Missouri Division of Finance.

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Stephen Martinez

Tax Office

Ancient IRS Rule Lurks to Trap Corporate Mobile Phone Users

FDR SSAncient IRS Rule Lurks to Trap Corporate Mobile Phone Users
By John Martellaro

Aug. 18, 2008 (The Mac Observer) -- Much has been made about the readiness of the iPhone for the enterprise. Now that Gartner has declared that it is, organizations that issue that new iPhone to employees should be aware of an old IRS rule that has forced others to pay huge back taxes, according to NPR on Thursday.

The often overlooked IRS rule goes back 20 years to the days when cell phones were rare, expensive and primarily used by elite executives whose company could afford to pay thousands of dollars for brick-sized mobile phones.

The IRS rule says that it's fine for employees who are supplied a mobile phone by their employer to make personal calls. The catch is that they have to properly account for every personal call with detailed logs in order to assess the corresponding taxes.

With the iPhone's personal nature, easy access to the Internet, and many personal uses, such as location services, it's even harder to distinguish personal from corporate use.

In 2007, the University of California at Los Angeles was slapped with a back tax bill for US$240,000 because it couldn't provide such logs. Their remedy was to issue a voucher to each employee, as a job benefit, and let the employees buy their own phones. The tax burden was fully shifted to the employee.

Tax laws are slow to change, but the U.S. Congress is finally dealing with the situation. An change that would address the situation has bipartisan support, but has not yet become tax law. In the meantime, employers who are eager to rollout an iPhone, or any mobil phone to their employees, should be aware of this ancient IRS trap.

© Copyright 2006 The Mac Observer, Inc. All Rights Reserved.;;© 1995-2006, The Mac Observer, Inc. All rights reserved.

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Stephen Martinez

Tax Office

Wednesday, August 13, 2008

Plan de Pagos En-Línea

HoboIRS Añada Funciones a la Solicitud del Plan de Pagos En-Línea

IR-2008-77SP, 6 de junio, 2008

WASHINGTON — El Servicio de Impuestos Internos (IRS) hoy presentó varios nuevos avances a la solicitud interactiva para acuerdos de pago en, que facilitan la modificación de acuerdos de pago existentes para los contribuyentes y sus representantes autorizados.

El sistema ahora permitirá que:

* Individuos puedan modificar las fechas y/o cantidades de sus pagos en acuerdos vigentes
* Individuos modifiquen extensiones actuales a los acuerdos regulares y los acuerdos de pago de débito directo
* Individuos cambien acuerdos regulares actuales de pago a un plan de acuerdo de deducciones de nómina o a un plan de acuerdo de débito directo
* Preparadores profesionales con autorización válida usen la fecha de firma en su Forma 2848 aprobada, Carta de Poder y Declaración de Representante, o la identificación telefónica como método alternativo de la certificación cuando soliciten acuerdos para sus clientes

Según el IRS, más del 75 por ciento de los que son elegibles para un acuerdo de pago pueden establecer uno usando la herramienta en-línea. Desde su inicio en octubre del 2006, más de 30,000 contribuyentes han logrado utilizarla para establecer un acuerdo de pago.

Los contribuyentes elegibles que adeudan $25,000 o menos en impuestos, multas e intereses combinados pueden auto-calificar, solicitar y recibir notificación inmediata de la aprobación para acuerdos de pago – incluyendo acuerdos anticipados de deudas tributarias del Formulario 1040 del año 2007 y acuerdos de débito directo sin papeleo.

El pagar los impuestos a tiempo en su totalidad evita multas e intereses innecesarios. Sin embargo, los contribuyentes que no pueden pagar el total pueden pedir un acuerdo de pago. Para calificar, el contribuyente debe primeramente presentar todas las declaraciones requeridas y estar al corriente con pagos estimados pertinentes.

Para acceso a la solicitud, visite el sitio Utililice la lista de opciones bajo “I need to...” y seleccione “Set Up a Payment Plan” (Establecer un Plan de Pagos). La solicitud está disponible de lunes a viernes de 6 a.m. a 12:30 a.m., sábado de 6 a.m. a 10 p.m. y domingo de 4 p.m. a 12:00 a.m. (todos los horarios son Tiempo del Este).

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Esteban Martínez

Oficina de Impuestos

The New Housing Bill will give but will ask back!

FDR SSIn new housing bill, tax perks for some, costs for others

The housing bill passed last weekend by Congress to help some homeowners threatened with foreclosure, as well as wounded lenders Fannie and Freddie, offers some interesting tax perks--and one pitfall--for some other folks.

First-time homebuyers credit. Folks who purchase on or after August 9, 2008 and before July 1, 2009, get a refundable, $7,500 tax credit. The credit is 10 percent of the purchase price or $7,500, whichever is less. (Married folk who file separately have to split that credit; the IRS hasn't determined what to do with unmarried filers who purchase a home jointly). Like a lot of tax breaks, this one phases out as income increases. The phase-out starts for married folks with $150,000 in adjusted gross income and singles with $75,000 AGI. It's not available to a few populations, including non-resident aliens.

If you buy a home in 2009, you also can opt to treat the purchase has having taken place on December 21, 2008, and file an amended 2008 return to get the credit early.

The rub with this credit is that you have to start paying it back in the second year you own the home. You have 15 years to make the repayment; if you move before then, you have to pay the remainder back in full. There will be no interest due on the repaid credit.

Deductions for non-itemizers. Homeowners who don't itemize can take up to $1,000 per married couple, $500 for singles, from their state and local property taxes as an additional standard deduction on their 2008 return. This is a nice perk for taxpayers who own their home outright or who have very small mortgage interest payments that don't merit itemizing. "This provision allows them a deduction to defray some of the costs of home ownership, but just for one year, " notes Mark Luscombe, a tax analyst with CCH, a tax information company in Riverwoods, Il.

On the other hand, some folks may end up paying more...

Potential pitfalls for second-home owners. Folks who own second homes with the intent of using them as primary residences will no longer fully benefit from a powerful tax break for home sellers. The current law says that if you move to a second home, live there for at least 2 years and then sell it, you can exclude up from income up to $500,000 in gains (for couples filing jointly) and $250,000 for (singles and heads of household).

A new provision pro-rates the exclusion based on the amount of time you own the house as a primary, rather than secondary, home. If, for instance, you and your spouse own a vacation home for 25 years and make it your primary residence for 5 years before selling, you'll only get a portion of the exclusion: 5 years/25 years, or 20 percent. If you sell and realize a gain of, say, $300,000, you can only exclude 20 percent of that gain--$60,000--versus the full $300,000 allowable under the current law.

The new law only applies to activity after January 1, 2009, however. So if you've owned your second home for many years, the new "ratio" won't have as dire an effect on you as it would had you bought the home in 2009.

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Stephen Martinez

Tax Office