Passive Loss

What Is Passive Loss?

A passive loss is a financial loss within an investment in any trade or business enterprise in which the investor is not a material participant.

Understanding Passive Losses

Passive losses can stem from investments in rental properties, business partnerships, or other activities in which an investor is not materially involved. In order to be considered a nonmaterial participant, the investor cannot be continuously and substantially active or involved in the business activity.

A passive loss may be claimed by a rental property owner or a limited partner based on their proportional share of a partnership. Passive losses can be written off only against passive gains. Passive losses can include a loss from the sale of the passive business or property in addition to expenses exceeding income. When losses exceed the income from passive activities, the rest of the loss can be carried forward to the next tax year provided there is some passive income to write it off against.

According to the Internal Revenue Service (IRS), there are two kinds of passive activities:

1. Business or trade activities in which the taxpayer does not materially participate during the year
2. Rental activities (even those in which the taxpayer does materially participate) unless the taxpayer is a real estate professional

By comparison, a nonpassive activity is a business in which a taxpayer works on "a regular, continuous, and substantial basis." The IRS specifies that passive activity income does not include portfolio income (such as dividends, annuities, interest, and royalties) and personal service income (such as salary, wages, commissions, or self-employment income from business or trade activities in which the taxpayer materially participates). Passive losses may be claimed in IRS Form 8582: Passive Activity Loss Limitations.

On a tax return, income and losses are listed in two categories: Passive and nonpassive. Limited partners are usually passive given the restrictions of the tests for material participation. Given the nature of limited partnerships, participants tend to have passive losses or income from them. While more than one form or tax schedule may be required for a taxpayer to report their passive activities, only Form 8582 should be used to report passive activity losses.

Nonpassive Loss

Nonpassive income and losses, by comparison, include business activities in which the taxpayer/investor is an active, material participant. This may include salaries, 1099 commission income, portfolio or investment income, or any other income deemed to be non-passive. Portfolio income may include royalties, dividends, interest income, gains and losses on stocks, lottery winnings, pensions, and other property held for investment purposes.

Types of Passive Loss Activities

Generally, passive losses (and income) can come from the following activities:

• Equipment leasing
• Rental real estate (though there are some exceptions)
• Sole proprietorship or a farm in which the taxpayer has no material participation
• Limited partnerships (though there are some exceptions)
• Partnerships, S corporations, and limited liability companies in which the taxpayer has no material participation

If you participated in a rental activity as a real estate professional, that activity is not considered a passive activity. To be qualified as a real estate professional for any given tax year under IRS rules, you must meet both of these requirements:

1. More than 50% of the personal services you performed during the tax year in all trades or businesses were performed in real property businesses or trades in which you materially participated.
2. During the tax year, you performed more than 750 hours of services in real property businesses or trades in which you materially participated.

If you are unsure whether a loss should be classified as passive or not, it is worth consulting with a professional accountant to ensure your taxes are being filed correctly.