Who we help

Tax Attorneys for Real Estate Investors

Depreciation, passive losses, like-kind exchanges, and conservation easements under IRS examination.

Real estate rewards investors with some of the tax code's most powerful benefits, and those same benefits draw some of the IRS's closest attention. Depreciation, passive loss rules, like-kind exchanges, and conservation easements all carry technical requirements that are costly to defend if they were not met at the time.

When an examiner challenges a real estate professional claim, disallows a loss, or attacks an exchange or an easement deduction, the assessment can reach across multiple tax years and, in some cases, multiple properties. That is why the issues worth conceding and the ones worth taking to appeals or court get sorted early.

Whiteford represents real estate investors, developers, and owners in IRS audits and state tax disputes over the positions that matter most to real estate.

Where real estate draws IRS scrutiny

Several real estate positions are recurring audit themes: rental losses claimed against other income, real estate professional status, the valuations behind conservation easement deductions, and the treatment of gain on sale. They are technical, and they are commonly overstated.

The rules reward good records and disciplined structuring and punish the opposite. The difference between a defensible position and a costly one is usually documentation, plus timing decided before the return was filed rather than after a notice arrives.

Common issues

Passive loss limits and real estate professional status

Rental real estate losses are generally passive and offset only passive income unless an exception applies. A limited allowance lets some owners deduct capped rental losses against other income, but it phases out as income rises. Real estate professional status requires more than half your working time, and more than 750 hours a year, in real property businesses.

Material participation in the rentals

Qualifying as a real estate professional is not the end of the analysis, and this is the point the IRS presses hardest. You must still materially participate in the rental activities for the losses to be treated as nonpassive. We defend these claims and build the hour-by-hour records they require.

1031 like-kind exchanges

A properly structured exchange defers gain when one investment property is traded for another. Since the 2017 tax law, Section 1031 applies only to real property, and the timing, identification, and qualified intermediary rules are strict. The IRS examines whether an exchange really qualified and whether cash received should be taxed.

Depreciation and recapture

Depreciation shelters rental income during ownership and comes back on sale, when gain attributable to prior depreciation is recaptured and a different maximum rate can apply to unrecaptured depreciation on real property. Disputes turn on basis, on cost segregation studies, and on how the gain is characterized.

Conservation easements

Easement deductions, and syndicated arrangements in particular, have been among the most heavily litigated tax issues in recent years, drawing intense IRS scrutiny and, more recently, statutory limits on deductions for syndicated transactions. Investors who claimed them can face audits, penalties, and litigation over valuation and compliance.

Loss limitations and multi-issue audits

Beyond the passive loss rules, noncorporate taxpayers are subject to an excess business loss limitation with annual thresholds and carryover rules. Real estate audits frequently combine several of these issues at once, and the resolution depends on the records behind each position. We narrow the issues and take the strong ones forward.

Recommended next steps

  • Keep contemporaneous, hour-by-hour time records for your real property businesses if you claim real estate professional status.
  • Pull the full exchange file, including identification notices and the qualified intermediary agreement, before answering any question about a 1031.
  • Have your basis and any cost segregation study reviewed before you sell, not after the gain is reported.
  • If you claimed a conservation easement deduction, review the exposure with counsel before an audit begins.

How we help

Frequently asked questions

The IRS disallowed my rental losses. Can I fight it?
Often yes. Whether rental losses are deductible against other income turns on the passive activity rules, the limited active-participation allowance, and whether you qualify as a real estate professional and materially participate. Each of those is fact-intensive and defensible with the right records, which is where representation makes the difference.
What does it take to be a real estate professional for tax purposes?
You generally must spend more than half your working time, and more than 750 hours a year, in real property businesses. Even then, you must materially participate in the rental activities for the losses to be nonpassive, which is exactly the point the IRS challenges in examination.
Is my 1031 exchange safe from IRS challenge?
It depends on how it was structured. Since 2017, Section 1031 covers only real property, and the timing, identification, and intermediary rules are strict. The IRS examines whether an exchange truly qualifies and whether any cash or other property received along the way is taxable.
I invested in a conservation easement. Am I at risk?
Possibly. Syndicated conservation easements have faced heavy IRS enforcement and litigation and are now subject to statutory limits on the deduction. If you claimed one, it is worth reviewing your exposure with counsel before an audit begins rather than after the notice arrives.
Why is my gain taxed higher when I sell a rental?
Part of the gain reflects depreciation you claimed during ownership, and that recaptured portion of real property gain is taxed at a higher maximum rate than ordinary capital gain. Disputes often turn on basis and on how the gain is characterized, and both can be contested.

Where we work

All Whiteford offices where you can meet with an attorney

Maryland

Baltimore

7 St Paul Street
Suite 1500
Baltimore, MD 21202
(410) 498-6815
Maryland

Columbia

8830 Stanford Boulevard
Suite 400
Columbia, MD 21045
(410) 431-1954
Maryland

Ocean City

7408 Coastal Highway
Ocean City, MD 21842
(302) 829-3043
Maryland

Rockville

111 Rockville Pike
Suite 800
Rockville, MD 20850
(410) 347-8730
Maryland

Towson

Towson Commons, Suite 300
One West Pennsylvania Avenue
Towson, MD 21204-5025
(443) 278-2191
Colorado

Denver

2128 West 32nd Avenue
Denver, CO 80211
(720) 419-1296
Delaware

Bethany Beach

26 N. Pennsylvania Avenue
Bethany Beach, DE 19930
(302) 829-3043
Delaware

Rehoboth Beach

18949 Coastal Highway
Rehoboth Beach, DE 19971
(302) 829-3043
Delaware

Wilmington

600 North King Street
Suite 300
Wilmington, DE 19801
(302) 337-5359
District of Columbia

Washington, DC

1717 Pennsylvania Avenue NW
Suite 1300
Washington, DC 20006
(202) 972-6503
Florida

West Palm Beach

222 Lakeview Avenue, Suite 1550
West Palm Beach, FL 33401
(561) 282-9850
Kentucky

Lexington

250 West Main Street, Suite 1800
Lexington, KY 40507
(859) 687-6700
New Jersey

Fairfield

375 Passaic Avenue
Suite 100
Fairfield, NJ 07004
(973) 227-5900
New York

New York

444 Madison Avenue
4th Floor
New York, NY 10022
(646) 618-8660
New York

White Plains

1025 Westchester Avenue, Suite 106
White Plains, NY 10604
(914) 580-9176
North Carolina

Charlotte

4064 Colony Road
Suite 315
Charlotte, NC 28211
(980) 242-5001
Pennsylvania

Pittsburgh

11 Stanwix Street
Suite 1400
Pittsburgh, PA 15222
Virginia

Falls Church

3190 Fairview Park Drive
Suite 800
Falls Church, VA 22042
(703) 280-9260
Virginia

Richmond

Two James Center, 1021 E. Cary Street
Suite 2001
Richmond, VA 23219
(804) 485-1492
Virginia

Roanoke

10 S Jefferson Street
Suite 1110
Roanoke, VA 24011
(540) 759-3560
Virginia

Virginia Beach

249 Central Park Avenue
Suite 300-91
Virginia Beach, VA 23462
(757) 208-9512
Contact Michael March