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I am selling my house – Do I have to pay taxes on the sales price?

July 12th, 2012 Comments off
Asked to comment on the new constitution and speculate on the permanency of the newly formed United States of America, Benjamin Franklin stated that “In this world, nothing can be said to be certain, except death and taxes.”  Some 200 years later the certainty of taxation continues.


One tax imposed in the United States is the Income Tax.  The Internal Revenue Code defines “gross income” as “all income from whatever source derived.” It is not limited to earned income and includes profits earned from the sale of real property.


A seller’s income derived from the sale of real property is calculated by taking the gross amount received by the seller (in cash, trade, barter or otherwise) and deducting therefrom the cost of the real property.  This cost of the real property in tax terms is referred to as the “cost basis” and generally consists of the purchase price and the cost of any major capital improvements put into the property during the period of ownership.  For example, if a homeowner were to purchase his home for $20,000.00 and, during the term of his ownership, added a $10,000.00 extension, the cost basis in the property would be $30,000.00.  If the same homeowner were to sell this property for $100,000.00, he would have a gain or gross income of $70,000.00.


Under Section 121 of the Internal Revenue Code, some of the gain from the sale of one’s principal residence is excluded from gross income. In order to be eligible for the exclusion, a tax payer must have owned the property and used it as a principal residence for periods aggregating two years or more in the five year period prior to the date of sale.


For a single tax payer, the first $250,000.00 of gain is excluded from gross income.  In the case of married tax payers who file a joint return during the taxable year in which the sale occurred, $500,000.00 of gain is excluded from gross income.


In order to be eligible for the $500,000.00 exclusion, it is not necessary that both spouses own the property.  It is only required that one of the spouses own the property, however, the occupancy requirements must be met by both spouses.  It is also not necessary that both spouses be alive at the time of the sale, as there is a special rule for certain sales by surviving spouses. A surviving spouse will receive a $500,000.00 exclusion provided the sale occurs within two years of their spouses’ date of death and, provided that at the time of the spouses death, the parties would have been entitled to the $500,000.00 exclusion.


In general, the exclusion may only be used once every two years, but there are also exceptions to this rule if a sale is necessary “by reason of a change in place of employment, health or, to the extent provided in the regulations, unforeseen circumstances.”


Suppose you don’t have a house, but live in and own a Coop Apartment? The same rules apply. In the case of a cooperative, the ownership requirements apply to the titled holding of the stock and the use requirements apply to the occupancy of the apartment which the tax payer was entitled to occupy as a shareholder and owner of a proprietary lease.


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Finding a Guardian Angel

July 11th, 2012 Comments off

As a parent of a minor child, you may in your will designate a guardian for your children in the event that you die during their minority.  The New York State Domestic Relations Law (DRL) § 81 authorizes the appointment of guardians by parents.  The Surrogate, who is the judge who handles estate matters, will generally approve your designee, provided he or she is not a person of dubious character.

Of all the decisions parents make when preparing their wills, the most difficult will likely be the choice of a guardian.

Here are some issues to consider before you make your choice:

(1)        Geographical Proximity (“Something tells me we’re not in Kansas anymore, Toto”):  Your children will likely have to move in with their guardian.  If you prefer that they continue to live in your neighborhood, then your brother Travis who owns an Alpaca farm in Pocatello, Idaho may not be a good choice.

(2)        Your Children’s Choice (“You’re going to send me WHERE!?”):  This is not a consideration with young children, but once your children reach a certain age, the courts will give some “deference to their preference.”  Either way, it’s good to make sure that your children will be comfortable with your selection.

(3)        Your Spouse’s Preference (“Hey, they’re my kids, too!”):  If you die, the children will come under the care of their other “parent and natural guardian.”  But, if he or she dies first the court will likely confirm your choice.  Still it’s best if you confer and come to an agreement on the same person or persons.

(4)        Religious, Moral and Political Beliefs (Better Not Choose Uncle Buck!):  Your good friends and loving relatives may not share the same beliefs as you do.  Give this consideration, as your children will be under their guardian’s influence.  It’s not likely that your children will go to church if their guardian doesn’t.

(5)        Age and Inclination (“Been there; done that.”):  Make sure that the person you choose choice is young enough and willing to assume the awesome responsibility of raising your children.  No matter how wonderful your children may be, parenting is still a job.  Also, consider that your babies will be minors until they turn eighteen.  Grandma and Grandpa may not be up to the task in fifteen years.

(6)        The Guilt Factor (It’s not just reserved for Catholics and Jews): Your friend or relation may agree to be the guardian of your children because they love you and your child.  Make sure that they feel comfortable to say no, if they believe that the burden is too great.

(7)        The Old Woman Who Lived in a Shoe Problem (Or . . . never have more children than you have car windows.):  Consider whether your prospective guardian has too many other children.  They may always have room for your children in their hearts, but make sure they have enough rooms in their house.

(8)        Financial Stability: (“A Fool and Your Children’s Money Are Soon Parted”): Your children’s guardian need not be the same person as the trustee who will invest their assets and manage their money.  Nonetheless the guardian should be good with money.  At the very least, his or her responsibility in this regard will impart an important lesson to your children.

Too many people postpone making a will because they cannot agree or decide on a guardian.  Never fear.  There is likely no perfect choice, as you can’t expect that your friends or family will make all the same choices you might make.  Nevertheless, consider the pros and cons for each possible choice.  Make up your mind and don’t delay making your will.

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When is a Bank Check Monopoly Money?

July 2nd, 2012 Comments off

Americans have become accustomed to believing that the gold standard for banking transactions is a bank check.  The issuing bank guarantees that the check is as good as cash.  Right?  Wrong.

Let’s say that your Grandma died last week and you’re selling her wedding ring on e-bay.  A prospective buyer may offer to pay you with a bank check, which is a form of a cashier’s check.  Sounds great.  After all, it’s the BANK’s check.  Once you deposit the check in your account, the money will be yours the next day because your bank (the depositing bank),  must make the money available to you on the first business day after you deposit the check.  That’s the law, as the Expedited Funds Availability Act (12 CFR 229.10) assures next day availability.  What most people don’t know is that when your bank makes the money available, it is only making a “provisional settlement,” because the depository bank has not yet collected the funds from the drawee bank, from which the check was drawn.  Your bank acts as your agent to process the check and must wait for the issuing bank to transfer the funds, before the money is really yours.  If the check is fraudulent because it was printed by a Nigerian con artist, then the “drawee bank” either does not exist or the account is a fake.  When the check is dishonored your bank will charge you back and deduct the money from your account.  If you’ve spent the money or, God forbid, wired some of it back to the con artist to refund him for his overpayment, he’ll have the jewelry, your money and “your goat.”   He’ll sell the diamond on the black market, use your money to run another scam and give the goat to his family for milking.  Even worse, the bank will sue you to retrieve its money.

How is this possible? The check is no good, so the drawee bank won’t honor it.  But, you might say, “the teller told me that I could take the money the next day!”  Your bank won’t take the loss, because the Uniform Commercial Code (UCC) gives the depository bank the right of “charge back” when the check is fraudulent, even if your bank screws up and the teller misled you.  Under the UCC, your bank still has the right of charge back even if it “fail(s) . . . to exercise ordinary care with respect to the item.”  (See U.C.C. § 4-214(d)(1)).

Bankers will argue that this is a fair process, as our monetary system demands speedy transactions.  If the public wants quick access to their money, there’s a price to be paid.  They will also argue that the great majority of check transactions are not fraudulent. Still, bank check fraud is a serious issue if you are the victim.

Unfortunately, there is a hierarchy in the legal pantheon which is best illustrated by analogy to a pyramid.  At the base of the pyramid are local ordinances and regulations.  On the next rung up the pyramid are the laws of the individual states.  On top of that you’ll find our system of Federal Constitutional Law.  Superimpose on top of the Constitution, God’s laws and commandments. Then at the very top of the pyramid are the banking rules and regulations.

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