Buyer’s Agent Should Use Unrepresented Seller Compensation Consent Form While Representing A Buyer In A FSBO

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The Dodd-Frank Act Does Not Apply To Commercial Transactions

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Broker May Pursue A Buyer For A Commission With A Properly Executed Buyer-Broker Exclusive Employment Agreement (Buyer-Broker Agreement)

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Trustee Generally Has The Authority To Sign On Behalf Of A Trust

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Is Your Tax Deduction Lacking “Economic Substance”?

Recently, social media sites frequented by Arizona real estate licensees have been abuzz over the IRS’s ability to disallow certain tax deductions on the basis that they lack “economic substance.” Because the deduction of business expenses is important to REALTORS®, AAR asked Tax Accountant Eric Viavattene of Dobbins Wealth Management to shed light on this issue.

Finding ways to limit your tax liability is critical to your business. The key to success lies in understanding the latest rules for what does, or does not, constitute economic substance.

As a judicial concept, the doctrine of economic substance has existed for about as long as people have tried to limit taxation from business pursuits. Economic substance refers to the reasoning behind a business transaction. It asks, “does the transaction have any merit beyond avoiding tax?”

In the past, courts have determined whether a transaction had economic substance based on precedent – with no specific rules involved. The advent of Section 1409 of the Health Care and Education Affordability Reconciliation Act of 2010 changed all this. It requires that a two-part test be run to determine if a transaction qualifies.

To be considered as having economic substance the transaction must:

1) change the taxpayer’s economic position in a meaningful way apart from any federal income tax effects; and

2) the taxpayer must have a substantial purpose for entering into the transaction apart from any federal income tax effects.

Additionally, the Act specifies a penalty of 40 percent of the liability for underpayments of tax from transactions that do not meet the qualifications. However, while the Act does create these tests and penalties, it doesn’t say exactly when they should be applied, leaving a wide opening for their application.

For the REALTOR® community, these changes require business owners to take more stringent accounting measures and increase the documentation retained for their transactions. All transactions, including payroll, need to show business and economic merit beyond simply lowering tax liability. Payroll amounts for shareholders must be based on work recorded in time sheets or logbooks, or some other verifiable means, with rates comparable to industry norms. Business expenses need to be reasonable and necessary – no trips to the grocery store on the company dime unless they’re really for company expenses, and even then, only with a receipt noting the reason for the expense.

Be sure to seek the advice of an accounting professional to learn what you can do to improve your process and reduce your liability.


About the Author:
Eric Viavattene is a partner at Dobbins Wealth Management, PLLC where he specializes in Short Sale/Foreclosure tax analysis and financial planning. As a Registered Investment Advisor and senior Financial Advisor, Eric provides a
unique tax perspective during the planning process as he works with individuals and small to medium-sized businesses to help them meet their financial goals.

Scottsdale Broker, Bob Hertzog, Gains A New Perspective By Giving Back

BobHertzogIt was about this time last year that REALTOR® Bob Hertzog, a Scottsdale broker and founder of Summit Home Consultants, started volunteering with the Arizona Association of REALTORS® (AAR). Active in social media, Hertzog said he often participated in conversations about the association and the industry. “It was easy to assume that no one was doing anything [on behalf of Arizona REALTORS®],” he said. But, in April 2013, Hertzog attended his first AAR Spring Convention and he got an entirely new perspective. He said, “It blew me away to see the sheer volume of people that participate [in the association] on a regular basis and try and make a difference.” So, Hertzog took the advice of a colleague and walked up to AAR Vice President of Government Affairs Nicole LaSlavic and asked to join the AAR legislative committee.

Since then, Hertzog says he devotes approximately 10 hours a month to volunteering; most of which is spent participating in meetings and reviewing pending legislation. “It’s tough to be taken away from your business, even for just a few hours,” he said. “But, the payoff is well worth it.” Hertzog, who has had his broker’s license for 14 years, said, “I’m in this business long-term. I want to sell real estate until I die. I realized that I better jump in and try and make a difference.”

And Hertzog has made a difference. He’s been a part of the AAR legislative committee devoted to maintaining anti-deficiency statutes and has helped to stave off the legislation that would infringe on private property rights. He’s also recently been asked to join the ARMLS rules committee. “When you get in the middle of things, you see so much there than what meets the eye,” said Hertzog.

While Hertzog is definitely gaining new perspective on the inner-workings of Arizona’s real estate industry, there are also residual benefits to his involvement in the association and ARMLS. “Volunteering has been a great networking opportunity for me. I get to work with successful REALTORS® from around the state. And who knows? It might turn into a referral.”

If you’re interested in becoming more involved in the Arizona Association of REALTORS®, take a look at our four primary committees and contact the vice-chair.


Wastewater Warrior Wins Again!


Lowell Fagen, Red Arrow Real Estate, was honored with a “Lifetime Achievement Award” by the Arizona Onsite Wastewater Recycling Association (AzOWRA), at the organization’s recent annual meeting in Scottsdale. AzOWRA is a statewide, non-profit group whose primary mission is to develop and present educational programs relating to the needs of all stakeholders having an interest in onsite wastewater systems. This includes homeowners and real estate agents.

Fagen was presented a plaque by AzOWRA officers Suzanne Ehrlich, president-elect and Lou Brown, treasurer. Ehrlich read Lowell’s profile statement noting that he was a charter member of AzOWRA and a past director. He was cited as instrumental in producing the Homeowner’s Education Program, and developing the first Arizona-oriented Homeowner’s Operation and Maintenance manual for onsite systems.

Fagen said of winning the award, “It was greatly appreciated; and an inspiring day for me to be recognized by an organization such as AzOWRA. It was also unexpected because of how and when the award was presented to me, since I was unable to attend AzOWRA’s annual meeting when it was first announced. I was also unaware of subsequent behind-the-scenes arrangements cooked up by officers of AzOWRA and my broker. This led to the surprise ceremony held at Red Arrow’s Prescott office attended by my associates.”

Fagen was further recognized for his years of service and reappointment to ADEQ’s State Advisory Committee for Onsite Systems (OWAC). Lowell represents Arizona’s real estate community on the 15 member committee comprised of engineers, designers, educators, installers, inspectors, pumpers and county regulators. This advisory group is currently reviewing onsite regulations to develop recommendations to ADEQ for updates and revisions to existing rules and forms.

It was also noted that Lowell initiated and developed an ADRE-approved C/E Course for real estate agents whose practice includes properties served by an onsite system. This course has been a feature of AzOWRA’s biennial education conferences.

Congratulations, Lowell!


What’s Up in Housing? A Phoenix Market Snapshot

Is business good or is it poor? Is it a buyer’s market or a seller’s market? It all depends on how you look at things, but both agents in the field and my friends at the Cromford Report say we’ve entered a buyer’s market. The concepts are pretty simple: if there are more homes available (supply) than buyers who are shopping (demand), buyers tend to have the upper hand resulting in a buyer’s market. When the supply of homes is low and there are a lot of buyers, we have a seller’s market. Below, we can see the Cromford Index dashboard for February 23, 2014 indicating a buyer’s market, as it has for the past two weeks.

Cromford Market Index, February 23, 2014

Cromford Feb 23, used by permission

The Cromford report data also shows a balanced Market Index between 90 and 110—the colors aren’t “good” or “bad,” green simply indicates a seller’s market and red means a buyer’s market. I should point out that the Cromford Report indices are very complex and the data reflects many different variables over several years.

Although the greater Phoenix area is made of up of many sub-markets, some general trends appear:

  • Active listings have been increasing since the summer of 2013 and are well-above February 2013 levels.
  • On the other hand, sales are much lower than (about half) last summer’s levels. The picture I get from agents in the field is that sellers are looking at the big run-up in prices over the last 18 months1 and still have unrealistic expectations—they don’t realize demand is weakening.
  • It’s difficult to convince sellers to lower prices, so many agents are suggesting concessions to attract buyers.

When will prices be coming down? In fact, they have already begun to edge down. The recent median price peak of $185,000 of last summer has edged down to $180,000, the number of price cuts per week has increased by about 50 percent from February 2013 and the current ratio of final price to list price is 97 percent. It seems a little counter-intuitive that price per square foot continues to creep up, but a look at price ranges reveals most of that increase comes from homes priced over $500,000. Also, since appraisals tend to look at recent sales and current pricing, valuations will continue to lag the actual market.

So what’s up? Prices, though with the current trend toward a buyer’s market, prices will need to come down some to motivate buyers. Some good news about jobs and consumer confidence would help, too. Most analysts I talk with are saying that Phoenix housing prices are more likely to stabilize or decrease some in 2014, but mortgages will stay affordable. Things aren’t great, but they’re not bad, either. It’ll be an interesting year.

What do you think? What’s it like in your area? Leave a comment below or email me at

1 $79/square foot in September 2011; currently $128/square foot; median price $113,500 in September 2011, currently $180,000.


The Case-Shiller Home Price Index for the end of 2013 came out February 25, 2014. Although the data shows an increase in the Phoenix index of over 15 percent for 2013, it shows a quarter percent decline in the Phoenix index from November to December, the first decline in a couple years. This may give agents a bit more ammunition when approaching their sellers for realistic pricing.

Secrets of the Savvy REALTOR®: Spring Convention Preview


There’s something to be said for savvy REALTORS®. You know the type. You walk into an agent’s office and he’s having a conversation via Skype with his digital assistant about the latest bill to pass the legislature and ways to improve the website’s SEO, all while adding new listings to facebook and pulling up contract documents on his fancy new iPad. Your head starts spinning and you ask: What’s his secret?

On behalf of the AAR Spring Convention committee, I’d like to invite you to find out Secrets of the Savvy REALTOR®at our upcoming convention, April 15-18 at the Prescott Resort. This year, the cool pines of Prescott will lend themselves nicely to our white-hot line-up of local and national speakers. We’ll also be featuring eight continuing education (C/E) courses that range from Legal Issues to Agency, Commissioner’s Standards to Fair Housing. A full list of C/E is available here.

In addition to C/E, AAR will also be playing host to an impressive list of panelists and presenters including:

    • No. 1 REALTOR® ranked by The Wall Street Journal, Carin Nguyen;
    • The Good Life Team’s Garry Wise;
    • Legal experts Rick Mack, Scott Drucker and Lisa Robinson;
    • NAR Director of Digital Engagement Nobu Hata;
    • Technology presentations from 2014 AAR President Evan Fuchs, Joeann Fossland, Bill Risser and more!

What’s the best kept secret of the AAR Spring Convention? I’d have to say the networking opportunities. Nowhere else can you build your referral network and have so much fun doing it. This year, the Women’s Council of REALTORS® will hold several meetings, a luncheon and a reception. We’re also bringing back REALTOR® Karaoke on Wednesday night and a “Meet the Candidates” reception on Thursday evening.

A full-convention pass costs $179 and one-day passes are also available for $79. For more information, visit For updates and information on giveaways, follow the hashtag #AARCONV on Twitter and Facebook.


Both Spouses Must Sign A Contract To Sell The Marital Residence

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