Making an Intra-Family Loan? Know the IRS Applicable Federal Rate
Each month, the IRS publishes an interest rate index called the Applicable Federal Rates (AFRs). These interest rates are determined by a variety of economic factors and are used for various purposes under the Internal Revenue Code — including the calculation of imputed interest on below market loans between family members.
(We’ll explain what “imputed interest on below market loans” means in a moment.)
When it comes to family loans — especially loans above $10,000 — the IRS Applicable Federal Rates represent the absolute minimum market rate of interest a Lender should consider charging a Borrower in order to prevent unnecessary tax complications.
There are three AFR tiers based on the repayment term of a family loan:
(1) Short-term rates, for loans with a repayment term up to three years.
(2) Mid-term rates, for loans with a repayment term between three and nine years.
(3) Long-term rates, for loans with a repayment term greater than nine years.
A Lender should assess two main factors when selecting the appropriate IRS Applicable Federal Rate for a family loan:
(1) The length of the agreed upon repayment term of the loan.
(2) The IRS Applicable Federal Rate for that repayment term during the month in which the loan is made.
The IRS Applicable Federal Rates change monthly and are usually made available on the IRS’ website during the third or fourth weeks of the preceding month. However, loan parties are effectively “locked in” at whatever appropriate AFR is in effect at the time the loan is made. Generally speaking, these rates are significantly lower than market rates offered by a bank. See IRC Sec. 1274(d)
If a Lender chooses to simply not charge a family member a rate of interest at least equal to or above the appropriate Applicable Federal Rate in effect at the time a family loan is made, the IRS may impute the interest by taxing the Lender on the difference between the Applicable Federal Rate and the interest rate the Lender actually charged.
In other words, even if a Lender charges a Borrower 0% interest and never collects a penny of income interest on the family loan, the IRS requires the Lender pay income taxes on the earned interest income they should have received, based on the AFR at the time the loan was made. See IRC Sec. 7872(a) & 7872(e) & 7872(f)(2)
In addition to holding the Lender responsible for the taxable imputed interest, the IRS also assumes that since the Borrower did not make the required interest payments, the Lender is considered to have gifted the Borrower the money to pay the interest that was due.
See IRC Sec. 7872(f)(3)
By engaging in a loan with a family member below the appropriate AFR, the Lender is effectively penalized twice — once through taxation of imputed interest, and again by applying the Borrower’s unpaid interest towards the Lender’s annual $15,000 per person tax-free gift limit.
The IRS’ annual gift exclusion permits a taxpayer to gift up to $15,000 annually to each and every family member without penalty. Effectively, an individual could gift $15,000 to everyone they know, but once any one gift recipient receives a penny more than $15,000 from an individual donor in the calendar year, that donor must file a gift tax return. See IRS Publication 559
A poorly documented loan that the IRS considers a gift could also have significant effects on the Lender’s life-time gift and estate tax exemptions. Likewise, if the Borrower is unable to repay the loan and the Lender wishes to deduct the loss from their income taxes, documentation showing that the loan was legitimate could be critical.
Proper family loan documentation can also help avoid serious legal disputes with other family members (especially between siblings) or estate and repayment complications following an unexpected divorce or untimely death.
If a family loan is being used to specifically help purchase or refinance a home, the Borrower and Lender should consider the advantages of securing the loan through a properly registered Mortgage, Deed of Trust, or Security Deed.
In most cases, by securing a family loan through a properly registered Mortgage Deed of Trust, or Security Deed, the Borrower will be legally entitled to deduct the interest paid on the loan from their taxes at the end of the year. In order to legally exercise the deduction, the loan must be secured through a registered Mortgage, Deed of Trust, or Security Deed and properly filed with the appropriate government authority. See IRS Publication 936 or IRC 1.163-10T(o)
Cautious financial advisors generally recommend their clients properly document loans with family members at an interest rate that either meets or exceeds the appropriate AFR for all of the reasons above.