I recently got married and now we (together) have two houses (hers and mine). I have only lived in mine for 13 months and was wondering if there was an exemption to capital gains tax if we could not reasonably afford the two properties?

A:

According to Jared R. Callister, a former attorney-advisor to the United States Tax Court and current tax attorney for the California firm Fishman Larsen Goldring and Zeitler, because you've owned your home for more than one year, any gains will be treated as a long-term capital gain, and are subject to a preferred rate of just 15%.
However, that is not to say there are not possible exemptions, based on timing. For example, Callister says that home sellers who own and live in a home for a minimum of two years out of the prior five years may be able to exclude up to $250,000 of capital gains. Unfortunately, you do not currently meet those timing requirements, having owned the home for just 13 months, to date.

There is also the potential for eligibility for a partial exclusion, which applies if you were forced to move because of a change in your work location, due to health concerns, or because of some other "unforeseen circumstance." In this particular case, your marriage to a person who also owns a home is the so-called "unforeseen circumstance," but there is no simple answer as to whether the Internal Revenue Service (IRS) would recognize that as a qualifying event. Callister says that IRS regulations include general definitions and certain safe-harbor exceptions to define "unforeseen circumstance," which includes war, death and divorce. "Marriage, however, is noticeably absent from this list," says Callister. "As a result, you are left to rely on the general legal definition of an unforeseen circumstance, which is that the occurrence or event is one that you could not reasonably have anticipated before buying and occupying the residence." The definitive answer to your options ultimately depends on "the exact facts and circumstances surrounding the purchase of your home and, oddly, your marriage prospects at that time."

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