Advice for Ms. Client
One of your favorite clients called today with an interesting issue. You need to research and develop an advisory response for her.
Ms. Client owns a beautiful home on a full acre of land in Preston Hollow. Her large backyard is professionally gardened and landscaped and features a gen-erously proportioned and positioned pool. (You remember how beautiful the whole setup is from having been over for a party a couple of years ago…)
Ms. Client cuts to the chase: “Hey, I’ve raked in more than $10,000 by renting out my pool since April. I won’t have to include it on my 2022 1040, will I…???”
After recovering from your surprise enough to ask a few questions, here’s what you’ve learned:
• Ms. Client lists her pool with Swimply.com. It’s listed at $60 per hour. She nets $51 per hour after Swimply’s service fee.
• Ms. Client lists her pool as available for up 8 hours on Saturdays and 6 hours on Sundays. She doesn’t do weekdays and last weekend was her last “for the season.”
• Since April Ms. Client has rented her pool on 35 days total and for a grand total of 200 hours. Most groups rented the pool for 5 or 6 hours.
• Because she vetted potential renters carefully and collected a refundable clean-up fee of $300 (all of which was refunded), Ms. Client didn’t incur any directly pool-related costs for this “Swimply” activity. But, being smart about things, she did buy a $2 million personal and premises liability insur-ance policy back in March. It cost $1,200 (for the year) and of course Ms. Client wants to deduct the cost.
Needless to say, you’re aware of the wonderful “less than 15 days” rule – i.e., the exclusion from gross income of amounts received for renting out your personal residence for a total of not more than two weeks during any year – because you remember from Tax I that it’s a happy late appendage to the Code’s home office deduction section.
But you’re also aware that Swimply is a product of the pandemic, so this brand new phenomenon of people renting out their backyard pools is so new that there’s not going to be any IRS administrative guidance (you would have seen it if there had been), much less case law.
You need to find the statute, read it carefully, and consider how it should be (or might be) interpreted and applied to Ms. Client’s situation. No question she’s well beyond 14 days in terms of the number times she had renters in, but only if that’s how “days” are to be counted. On the other hand, 200 hours is less than 9 days if the statutory period can be measured in terms of a 24-hour period.
Develop your advice for Ms. Client and write it up in terms that she will under-stand. (She’s a very smart person, just not a tax professional like you…)
