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Interest Rates on Loans to Relatives and Friends

Many loans among family members are interest free. Be careful. If you loan money to a relative or friend, there may be income and/or gift tax consequences if there is no interest or if the interest is below the market rate.

For loans of $10,000 or less, you don't have to worry about any of this. Such a loan may carry little or no interest, and there are no income tax consequences or reporting requirements.

For loans of $10,001 to $100,000 (all loans between the borrower and lender are added together for this threshold), the forgone interest to be included in income by the lender and deducted by the borrower is limited to the amount of the borrower's net investment income for the year. If the borrower's net investment income is less than $1,000, it is deemed to be zero.

What does the borrower's net investment income have to do with it? One of the purposes of these rules is to prevent taxpayers from shifting income to kids or other family members who are in lower tax brackets. For example, Dad loans his 19 year old Son $100,000. Son invests it, receives interest, dividends, and capital gain income which Son reports on his own 1040 and pays no income tax. Then Son repays the $100,000 to Dad. The effect of this has been (1) Dad has made a gift to Son of the income and (2) the income has been taxed at lower brackets, in fact, at zero.

If, on the other hand, Dad lends Son $100,000 to buy a house, or to pay for college, and Son uses the loan proceeds for the intended purpose, then there has been no income-shifting. No income is being generated by the loaned funds. Interest will be imputed to this type of gift loan only to the extent that the son has investment income.

The IRS publishes applicable federal rates (AFRs) monthly. There are interest rates for short, mid, and long-term loans. Short-term rates are for demand loans and term loans of 3 years or less; mid-term is for 3-9 years; and long-term is over 9 years. For example, the short-term AFRs for January 2010 are short-term 0.57%, mid-term 2.45%, and long-term 4.11%.

For demand loans, the difference between the interest calculated using the stated rate and the applicable federal rate is generally treated as income to the lender and a gift from the lender to the borrower on December 31 of each year that the loan is outstanding. A demand loan is payable in full at any time on the lender's demand.

For term loans, a lender who makes a below market rate (BMR) loan is treated as having made a gift of the difference between the amount of the loan and the present value of all the scheduled payments, using the applicable federal rate on the date the loan is made. When making a term loan it is usually best to state an interest rate. The Lender may forgive interest payments as they come due. The forgiveness of the interest is a gift and the lender must, nevertheless, include the amount of the interest in income.

The Lender can forgive $13,000 of interest and principal payments using the annual gift tax exclusion. If the loan is from a married couple to a married couple, maybe Mom and Dad to Son and Daughter-in-law, up to $52,000 (4 x $13,000) in interest and principal payments could be forgiven each year with no gift tax consequences. Mom and Dad have interest income to report on their 1040. Son and Daughter-in-law are treated as having paid interest. If the loan was used by Son and Daughter-in-law to buy a home, and if the loan is secured by a mortgage on the home, the interest will be deductible for them as interest on their primary residence mortgage.

For any of these arrangements, make sure the terms are in writing. This accomplishes two things: (1) the terms of the arrangements are clear to the lender, the borrower, and other family members and (2) the loan documentation can stop the IRS from claiming that the transfer of cash was a gift. This is very important. Without written documentation that the transfer is a loan, the IRS can argue that there was no loan at all; it was just a gift. Plus, if the borrower can't make good on the loan, you would need to have this documentation in order to deduct it as a non-business bad debt.

Undocumented loans can become particularly contentious when the lender dies. Documentation establishes whether the loan is to be repaid to the estate or was a lifetime gift. Many times, a family lender, especially to children or grandchildren, does not expect a loan to be repaid after the lender's death. If this is so, it is necessary for the lender to state in his or her will that the balance of principal and accrued interest on the loan is forgiven. Otherwise, the loan will have to be repaid, or will be a set-off against the borrower's distributive share of the estate. Simple documentation can avoid this set-up for a sibling fight and the expense and time that usually ensues.

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Spencer Law Firm LLC
320 Race Ave
Lancaster, PA 17603

Toll Free: 866-639-5451
Phone: 717-207-7935
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