How Real Estate Big Shots Like Donald Trump Can Game the Tax Code

Donald Trump continues to refuse to release his tax forms, while his Democratic opponent, Hillary Clinton, made hers public on Friday. Clinton and her husband paid an effective tax rate of 34.2% on their $10.6 million 2015 income.

Odds are that Trump’s rate is on the low side, and maybe he even paid zero to the Internal Revenue Service. That’s because, as a real estate operator, he has ample opportunity to manipulate the tax code. All legal, to be sure. But it’s something not usually available to ordinary folks.

Trump says he won’t disclose his returns because up to five years of them are being audited by the Internal Revenue Service. Although numerous tax experts say an audit doesn’t bar a taxpayer from making his returns public, Trump remains adamant. (A request to his campaign for further information went unanswered.)

Meanwhile, the drumbeat of demands that he reveal his returns has grown louder. On Sunday, Rep. Mark Sanford (R-S.C.), a Trump supporter, argued in the New York Times that the candidate’s failure to release the documents would harm democracy. Trump’s running mate, Indiana Gov. Mike Pence, also said over the weekend that he will release his returns soon.

In the past, Trump has said that “I fight like hell to pay as little as possible.” As the 2012 GOP presidential nominee, Mitt Romney, found out, a wealthy person’s disclosure of light taxation doesn’t play well with the voters. After some foot-dragging four years ago, Romney eventually owned up to paying a 14% rate, and took heat for it.

There are several ways real estate pros like Trump can use their work to shield them from paying as much as Clinton does—or paying anything, for that matter:

Limited liability corporations. This entity is popular among real estate types, and Trump has 240 LLCs, according to his campaign disclosure filings. These things are known as “pass-through” companies because of how their profits are delivered to owners in a tax-friendly manner.

Here’s how they work: LLCs avoid so-called double taxation, which occurs with standard company structures, known as C–corporations. With C-corps, the government taxes profits at the corporate level and then once again when the money is distributed to owners as dividends or other payouts. But with LLCs, the income is taxed just once, to the owners’ delight.

LLCs’ most important feature, though, is their ability to generate large losses that offset owners’ income, and thus hold down their tax bills. Debt interest and property taxes, which are real cash payments, are deducted. But so is depreciation, which can produce a “paper loss”—a nice way of saying it is a fictional contrivance—that is enormously helpful to LLC owners.

Depreciation is an non-cash accounting move that decreases real estate’s value over time, and the purported decline gets deducted. But in the real world, commercial property, such as an office building, seldom decreases in value like a truck does after 200,000 miles; the building’s worth usually increases.

Once upon a time, regular taxpayers could put money into similar real estate contraptions and use these paper losses to whittle down their tax bills, too. The 1986 tax reform law squelched this stratagem for them, but kept it for professionals like Trump.

As he presented his economic plan last week in Detroit, Trump called for a tax code change that would further benefit people like himself. He proposed taxing all business income reported on personal tax returns at 15%. Pass-through investors—such as ones in LLCs, professional partnerships like doctors, and small business owners—would find this especially sweet because they typically pay much higher rates on their income. As a result, Clinton criticized the proposal as the Trump Loophole.

Turning loans into cash. With this tactic, a real estate owner shuffles money around and ends up with a big cash payout that kicks taxes way into the future, when paper losses presumably can erase the tax liability.

This is an intricate dance, where the owner has his real estate partnership borrow money equal to his stake in the venture, and then channels the money to a subsidiary, which then lends it to a bank as a note. The subsidiary distributes the money to the owner as a dividend. All the while, the owner’s share of the real estate remains intact.

Like-kind exchanges. Here, an owner swaps one piece of property for another of the same value, tax-free. The, ahem, beauty of it is that the new asset doesn’t have to be the same as the one the owner is trading.

Let’s say he has an office building, but feels that he can make a better return with an apartment complex instead—perhaps because there is a big demand for rental properties among millennials who don’t want to be tied down in home ownership. This way, to acquire the apartments, the real estate pro doesn’t have to first sell the office building for cash and incur taxes.

No surprise: Use of like-kind exchanges also are circumscribed for ordinary people. You can’t do it for your own residence, for instance.

Tax residency. If you are a wealthy person, particularly one who works in real estate, you probably have several residences in different states. Trump, for instance, lives in Trump Tower in New York, which imposes high state and local income taxes on residents. He also lives in Mar-a-Lago, his estate in Florida, which doubles as a private club. Florida has no income tax.

Where Trump says he lives for tax purposes is not public information. If he ends up releasing his tax forms, the voters would find out. Whether he will do so before the election, or ever, is anyone’s guess.