But we do know the tax laws contributed to Trump’s large losses. A dizzying array of tax write-offs for real estate development — including generous deductions for interest, depreciation, real estate taxes and maintenance expenses — can all help build up tax losses.
As a result, real estate developers get to write off the decline in the value of their properties even as their properties appreciate.
Ordinarily, rising value shows up as capital gains, which is taxable in principle — albeit at much lower rates other income. However, real estate investors often use special “like-kind exchange” rules to defer taxes. These rules apply to real estate, but not stocks or bonds. If a real estate investor exchanges property long enough and dies, the gains are never taxed. President Obama has
proposed to limit the like-kind exchange loophole, which Hillary Clinton has
endorsed.
In 1986, Congress enacted laws to prevent investors who are not actively involved in a business from deducting losses and expenses attributable to that business against their income from other activities. Congress also added “at-risk” rules, which prevent a taxpayer from deducting losses in excess of his actual economic investment in an activity (that is, his out-of-pocket). Those laws wiped out a lucrative tax shelter business used by doctors, dentists, lawyers and other high-income taxpayers.
But Congress largely exempted real estate developers and professionals from these rules. They continue to deduct their business losses against all of their income, both passive and active. And they are not subject to the at-risk rules. The result: Real estate professionals can use losses against non-real estate income, both in the year the losses arise and in some earlier and subsequent years. This means that Trump’s net operating losses can shelter not only any real estate gains, but also income from reality TV, Trump-branded products, books and speaking from tax.
Without seeing more of Trump’s tax returns, we cannot tell how much of his losses are attributable to poor economic results, favorable tax rules or tax evasion. But we can tell that something is seriously broken in our tax laws.