Tax deferment? 1031 Exchange!

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Real Estate

To qualify for Section 1031 of the Internal Revenue Code


the properties exchanged must be held for productive use in a trade or business, or for investment. Stocks, bonds, and other properties are listed as expressly excluded by Section 1031 of the Internal Revenue Code, although securitized properties are not excluded. The properties exchanged must be of "like kind", i.e., of the same nature or character, even if they differ in grade or quality. Personal properties of a like class are like-kind properties. Personal property used predominantly in the United States and personal property used predominantly elsewhere are not like-kind properties.

Real properties generally are of like kind, regardless of whether the properties are improved or unimproved.[1] However, a real property within the United States and a real property outside the United States would not be like-kind properties. Generally, "like kind" in terms of real estate, means any property that is classified real estate in any of the 50 U.S. states, and in some cases, the U.S. Virgin Islands.

Taxpayers who hold real estate as inventory, or who purchase real estate for re-sale, are considered "dealers". These properties are not eligible for Section 1031 treatment. However, if a taxpayer is a dealer and also an investor, he or she can use Section 1031 on qualifying properties. Personal use property will not qualify for Section 1031.

Taxpayers may wonder whether items such as equipment used on a property are included in the lump-sum sale of the property, and whether recognition of related gains may be deferred. Under Treasury regulation §1.1031(k)-1(c)(5)(i), property that is transferred together with the larger item of value that does not exceed 15% of the fair market value of the larger property does not need to be identified within the 45-day identification period, but still needs to be exchanged for like kind property to defer gain.

Cash to equalize a transaction cannot be deferred under Code Section 1031 because cash is not of like kind. This cash is called "boot" and the gain, to the extent of the receipt of this cash, taxed at a normal capital gains rate.

If liabilities assumed by the buyer exceed those of the seller (taxpayer), the realized gain of the seller will be recognized. If, however, the seller assumes a greater liability than the buyer, the realized loss cannot offset any realized and recognized gain of receiving boot such as cash or other personal property considered boot.

Originally, 1031 cases needed to be simultaneous transfers of ownership. But after the rendering of the decision in Starker v. United States,[2] a contract to exchange properties in the future is practically the same as a simultaneous transfer. This case invented the concept of the Starker exchange. It is under this case, decided in 1979, that the rules for election of a delayed 1031 originated. To elect the 1031 recognition, a taxpayer must identify the property for exchange before closing, identify the replacement property within 45 days of closing, and acquire the replacement property within 180 days of closing. A Qualified Intermediary must also be used to facilitate the transaction, by holding all the profits from the sale, and then disbursing those monies at the closing, or sometimes for fees associated with acquiring the new property.


Although it is not used in the Internal Revenue Code, the term "Boot" is commonly used in discussing the tax implications of a 1031 Exchange. Boot is an old English term meaning "Something given in addition to." "Boot received" is the money or fair market value of "Other Property" received by the taxpayer in an exchange. Money includes all cash equivalents, debts, liabilities or mortgages of the taxpayer assumed by the other party, or liabilities to which the property exchanged by the taxpayer is subject. "Other Property" is property that is non-like-kind, such as personal property, a promissory note from the buyer, a promise to perform work on the property, a business, etc.

There are many ways for a taxpayer to receive “Boot”, even inadvertently. It is important for a taxpayer to understand what can result in boot if taxable income is to be avoided.

The most common sources of boot include the following:

• Cash boot taken from the exchange. This will usually be in the form of "Net cash received", or the difference between cash     received from the sale of the relinquished property and cash paid to acquire the replacement property(ies). Net cash                 received can result when a taxpayer is "Trading down" in the exchange (i.e. the sale price of replacement property(ies) is       less than that of the relinquished.)
• Debt reduction boot which occurs when a taxpayer’s debt on replacement property is less than the debt which was on the         relinquished property. As is the case with cash boot, debt reduction boot can occur when a taxpayer is "Trading down" in       the exchange. Debt reduction can be offset with cash used to purchase the replacement property.
• Sale proceeds being used to pay non-qualified expenses. For example, service costs at closing which are not closing                 expenses. If proceeds from the sale are used to service non-transaction costs at closing, the result is the same as if the             taxpayer had received cash from the exchange, and then used the cash to pay these costs. Taxpayers are encouraged to             bring cash to the closing of the sale of their property to pay for the following: Non-transaction costs: i.e. Rent prorations,       Utility escrow charges, Tenant damage deposits transferred to the buyer, and any other charges unrelated to the closing.
• Excess borrowing to acquire replacement property. Borrowing more money than is necessary to close on replacement             property will not result in the taxpayer receiving tax-free money from the closing. The funds from the loan will be the first     to be applied toward the purchase. If the addition of exchange funds creates a surplus at the closing, all unused exchange         funds will be returned to the Qualified Intermediary, presumably to be used to acquire more replacement property. Loan         acquisition costs (origination fees and other fees related to acquiring the loan) with respect to the replacement property           should be brought to the closing from the taxpayer’s personal funds. Taxpayers usually take the position that loan                   acquisition costs are being paid out of the proceeds of the loan. However, the IRS may take the position that these costs are     being paid with Exchange Funds. This position is usually the position of the financing institution also. Unfortunately, at         the present time there  is no guidance from the IRS on this issue which is helpful.
• Non-like-kind property which is received from the exchange, in addition to like-kind property (real estate).

Section 1031 & Second Homes

There is and has been much confusion surrounding the use of Section 1031 and second homes. Although most taxpayers purchase second homes with the expectation of appreciation, the Service has ruled that properties that are purchased for personal use are NOT investment properties, and therefore do not qualify for Section 1031 treatment.

Until 2008 many people were exchanging in and out of their second homes as there was little to no guidance surrounding what did and did not constitute property held for investment. Finally, in Revenue Procedure 2008-16 the IRS has clearly defined what is acceptable. This revenue procedure creates a safe harbor for taxpayers wishing to use Section 1031 with properties that follow a simple set of rules:

For a minimum of two years prior to, and after the exchange:

• The property must be rented for a minimum of 2 weeks to a non-relative.
• You can rent to a relative if it is their primary residence at fair market value rent.
• The property must only be used personally for 2 weeks or 10% of the time rented.
• You can maintain the property for an unlimited amount of time, but documentation must be kept for these activities.
• The property should be placed on Schedule E of your tax return and reported as income property.

Time limits

The §1031 exchange begins on the earliest of the following:

1. the date the deed records, or
2. the date possession is transferred to the buyer,

and ends on the earlier of the following:

1. 180 days after it begins, or
2. the date the Exchanger's tax return is due, including extensions, for the taxable year in which the relinquished property is transferred.

The identification period is the first 45 days of the exchange period. The exchange period is a maximum of 180 days. If the Exchanger has multiple relinquished properties, the deadlines begin on the transfer date of the first property. These deadlines may not be extended for any reason, except for the declaration of a Presidentially declared disaster.

A deadline that falls on any weekend day or holiday does not permit extension. For example, if your tax return is due April 15, but that date falls on a Saturday, then your tax return due date is forwarded to the first business day following April 15, or Monday, April 17. However, if a deadline falls on a Sunday, the requirements for the exchange must be met no later than the last business day prior to the deadline date, i.e. the prior Friday.

Identified replacement property that is destroyed by fire, flood, hurricane, etc. after expiration of the 45-day Identification Period does not entitle the Exchanger to identify a new property. However, the exchange may be terminated by this event so long as it is (a) specified in writing (such as a contingency in the sales contract); (b) is outside the control of the exchanger or any party to the exchange; and (c) is the only or last property that the exchanger is entitled to purchase under the exchange rules.

Mistakenly identifying condominium A, when condominium B was intended, does not permit a change in identification after the 45-day Identification Period expires. Failure to comply with these deadlines may result in a failed exchange.

IRS rules control the length of time that the replacement property must be held before it may either be sold or used to enter into a new tax deferred exchange. In highly appreciating markets, people may take the opportunity of selling their personal residence (where no capital gain is due below $250,000 for a single person or $500,000 for a married couple—see Taxpayer Relief Act of 1997) and moving into a former rental property for a specified time period in order to turn it into their new personal residence. With recent legislation, however, capital gains taxes on such a transaction are no longer completely avoided. The taxpayer will now owe a diminishing amount of capital gains taxes on the conversion of property from rental to personal residence once the final disposition of the property occurs.

In order to qualify for this exchange, certain rules must be followed:

1. Both the relinquished property and the replacement property must be held either for investment or for productive use in a trade or business. A personal residence cannot be exchanged.
2. The asset must be of like-kind. Real property must be exchanged for real property, although a broad definition of real estate applies and includes land, commercial property and residential property. Personal property must be exchanged for personal property. (There are some complicated rules surrounding this — for example, livestock of opposite sex are not considered like-kind property for the purpose of a 1031 exchange, and property outside the United States is not considered of "like-kind" with property in the United States.)
3. The proceeds of the sale must be re-invested in a like kind asset within 180 days of the sale. Restrictions are imposed on the number of properties which can be identified as potential Replacement Properties. More than one potential replacement property can be identified as long as you satisfy one of these rules:

The Three-Property Rule - Up to three properties regardless of their market values. All identified properties are not required to be purchased to satisfy the exchange; only the amount needed to satisfy the value requirement.
The 200% Rule - Any number of properties as long as the aggregate fair market value of all replacement properties does not exceed 200% of the aggregate Fair Market Value (FMV) of all of the relinquished properties as of the initial transfer date. All identified properties are not required to be purchased to satisfy the exchange; only the amount needed to satisfy the value requirement.
The 95% Rule - Any number of replacement properties if the fair market value of the properties actually received by the end of the exchange period is at least 95% of the aggregate FMV of all the potential replacement properties identified. In other words, 95% (or all) of the properties identified must be purchased or the entire exchange is invalid. An exception to the 95% rule is that if you close on a property within the 45 day period it still qualifies for the exchange

Difficulties involved in meeting limits

Frequently, the most difficult component of a 1031 exchange is identifying a replacement property within the first 45 days following the sale of the relinquished property. The IRS is strict in not allowing extensions.

A 1031 exchange is similar to a traditional IRA or 401(k) retirement plan. When someone sells assets in tax-deferred retirement plans, the capital gains that would otherwise be taxable are deferred until the holder begins to cash out of the retirement plan. The same principle holds true for tax-deferred exchanges or real estate investments. As long as the money continues to be re-invested in other real estate, the capital gains taxes can be deferred. Unlike the aforementioned retirement accounts, rental income on real estate investments will continue to be taxed as net income is realized.

An alternative to a 1031 exchange for someone who wants to defer capital gains tax, but who does not want to continue to hold property is a structured sale. This method offers both buyer and seller many benefits and is regarded as an excellent possibility for those looking to retire from or exit from the real estate or business market. However, capital gains tax will be assessed as the payments are received by the seller, unlike a 1031 exchange, whereby the capital gains tax can be deferred indefinitely for the exchanging individual.

How a 1031 exchange is accomplished

The following sequence represents the order of steps in a typical 1031 exchange:

Step 1. Retain the services of a Federally-licensed enrolled agent (EA), or State-licensed tax counsel or Certified Public Accountant (CPA).

Step 2. Sell the property, including the Cooperation Clause in the sales agreement. "Buyer is aware that the seller's intention is to complete a 1031 Exchange through this transaction and hereby agrees to cooperate with seller to accomplish same, at no additional cost or liability to buyer." Make sure your escrow officer/closing agent contacts the Qualified Intermediary to order the exchange documents.

Step 3. Enter into a 1031 exchange agreement with the Qualified Intermediary, in which the Qualified Intermediary is named as principal in the sale of the relinquished property and the subsequent purchase of the replacement property. The 1031 Exchange Agreement must meet with Federal tax law requirements, especially pertaining to the proceeds. Along with the basic agreement document, an amendment to escrow document is signed which names the Qualified Intermediary as seller. Normally the deed is prepared for recording from the taxpayer to the true buyer. This is called direct deeding. It is not necessary to have the replacement property identified at this time.

Step 4. The relinquished escrow closes, and the closing statement reflects that the Qualified Intermediary was the seller, and the proceeds go to the Qualified Intermediary. The funds should be placed in a separate, completely segregated money market account to insure liquidity and safety. The closing date of the relinquished property escrow is Day Zero of the exchange, and that is when the exchange clock begins to tick. Written identification of the address of the replacement property must be sent within 45 days, and the identified replacement property must be acquired by the taxpayer within 180 days.

Step 5. The taxpayer sends written identification of the address or legal description of the replacement property to the Qualified Intermediary, on or before Day 45 of the exchange. The document must be signed by everyone who signed the exchange agreement. It may be faxed, hand delivered, or mailed either to the Qualified Intermediary, the seller of the replacement property or his agent, or to a totally unrelated attorney, preferably by certified mail, return receipt requested.

Step 6. Taxpayer enters into an agreement to purchase replacement property, again including the Cooperation Clause. "Seller is aware that the buyer's intention is to complete a 1031 Exchange through this transaction and hereby agrees to cooperate with buyer to accomplish same, at no additional cost or liability to seller." An amendment is signed naming the Qualified Intermediary as buyer, but again the deeding is from the true seller to the taxpayer.

Step 7. When conditions are satisfied and escrow is prepared to close and certainly prior to the 180th day, per the 1031 Exchange Agreement, the Qualified Intermediary forwards the exchange funds and gross proceeds to escrow, and the closing statement reflects the Qualified Intermediary as the buyer. A final accounting is sent by the Qualified Intermediary to the taxpayer, showing the funds coming in from one escrow, and going out to the other, all without constructive receipt by the taxpayer.

Step 8. Taxpayer files form 8824 with the IRS when taxes are filed, and whatever similar document your particular state requires.


An alternative to the 1031 exchange

A Structured sale Annuity or "Ensured Installment Sale" is a capital gains tax deferral tool that enables the seller to gain benefits that other sales and capital gains deferral methods do not offer. It is a hybrid of the common installment sale and a structured annuity, and it enables the seller to collect a stream of payments, leverage equity, earn a pre-tax return, and other benefits. This method is a tool for those who want to do a 1031 exchange but cannot find a property within the time frame, and it allows the seller to have a backup plan. However, the capital gains taxes due on the property will still be due once each installment payment is made, thus causing the taxpayer to still pay the tax.



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