WHAT IS A 1031 EXCHANGE?
Internal Revenue Code Section 1031 provides that no gain or loss will be recognized on the exchange of any type of business use or investment property for any other business use or investment property. 1031 Exchanges are not really exchanges in the context of two-party barter. Instead, they are typical sales and purchases that involve the same exact ingredients as any other sale or purchase, without the typical gains. The only real difference is the investor is increasing his selling and buying power by electing to avoid the drain of taxes under Section 1031 regulations. No other aspects of the transaction are affected.
WHO SHOULD CONSIDER A 1031 EXCHANGE?
Anyone who is thinking about selling a business use or investment property should consider effecting a 1031 Exchange. An Exchange offers the astute investor an opportunity to reinvest the federal capital gains that would normally be handed over to the IRS and put that money to work for himself. You work too hard to simply pay the tax without carefully considering this reinvestment option. Essentially, 1031 Exchanges should be thought of as an interest free loan from the IRS; one in which the principal may be increased through subsequent exchanges and may never require repayment, if you plan properly.
- Many still believe that you must “swap” properties. Although this was required in the original code, this is rarely done in present times. 1031 Exchanges now enable one to sell their property to someone totally unrelated to the person from whom they are purchasing their replacement property. Although there are guidelines to follow, the only difference between a 1031 Exchange and a typical sale and purchase transaction is the deferral of federal capital gains.
- Many believe only investors of large commercial properties can utilize the benefits of Section 1031. The great thing about 1031 Exchanges is that it applies to all investment properties, large and small. It will work the same way for a corporation selling a large shopping center as it would for an individual selling a single-family home used as a rental property in a vacation area.
- Many believe you must acquire a property of “similar use or service.” While 1031 Exchanges are also known as like-kind simply applies to real property held for business use or investment. Therefore, an investor may sell raw land and acquire a five-unit apartment building or sell a warehouse and acquire raw land. He can sell one property and acquire three or sell four and acquire one. Virtually any type of real property used for business use or investment will qualify.
- Many believe 1031 Exchanges are very complicated and not worth doing. The fact is that when working with a qualified intermediary who specializes in Section 1031 tax deferred exchanges, the exchange process is very simple. The intermediary will keep you aware of your time deadlines and ensure you do everything in strict compliance with IRS regulations.
- The Exchanger will have more buying power because the federal income taxes are deferred. This will enable him to leverage himself up greater than he could had he paid the tax liability. The additional equity to reinvest will make him a more solid buyer and help him get easier financing.
- Investors can do exchange after exchange to create a pyramiding effect. This tax liability is forgiven upon death of the investor as the heirs get a stepped up basis on the inherited property.
- The Exchanger will have greater selling power because he does not have to inflate the sales price to try to cover some of the capital gains that would normally be due upon the sale of an investment property. It will enable him to be more flexible with this selling price.
- The Exchanger can acquire a replacement property with greater income potential. He can sell raw land and acquire income-producing property. Perhaps, he wants to acquire a building with additional units or in an easier to rent location.
- The Exchanger has the opportunity to consolidate several hard to mange properties in one easy to mange property or diversify into one large property. It provides an excellent opportunity to relocate or expand a current business or investment.
- An exchange can also help an investor acquire a less management intense property.
The basis of your replacement property will be lowered by the amount of gain deferred on the sale of your relinquished property.
BASIC REQUIREMENTS OF EXCHANGES
- BOTH PROPERTIES MUST BE “LIKE-KIND”.
- Like-kind simply means real property.
- Like-kind refers to the nature or character, not its grade or quality.
- Like-kind is a very broad and liberal category where just about any type of investment or business use property would qualify.
- Properties can be located anywhere within the United States with exchanges taking place in one or more states.
- Examples of like-kind: rental properties (single family homes, duplexs, triplexes, apartment buildings and complexes, etc.), raw land, office buildings, shopping centers, businesses, marinas, golf courses, a lease of at least 30 years including options, parking lots, farms, factories, trailer parks, storage facilities, retail stores, interest in a co-tenancy.
- Examples of non like-kind: stocks, bonds, notes, interest in a partnership, personal property, certificates of trust, choses in action.
- Investors can “mix and match” their properties. For example, an investor can sell a duplex and acquire raw land or sell a parking garage and acquire a multi-unit apartment building and a warehouse.
- BOTH PROPERTIES MUST BE HELD FOR INVESTMENT OR BUSINESS USE.
- Your use of both the relinquished property and replacement property must be investment or business use; each for a minimum of one to two years.
- Properties must not be used for personal use for more than 14 days per year or 10% of the actual number of days the property has been rented in a given year.
- Replacement property cannot be purchased with the intent to sell immediately.
- EXCHANGER MUST USE A QUALIFIED INTERMEDIARY OR FACILITATOR.
- One of the safe harbors of the regulations is the use of a qualified Intermediary to facilitate the Exchange.
- The sale of the relinquished property and the acquisition of the replacement property must “flow” through the Intermediary. This is done through direct deeding to avoid duplicate transfer taxes.
- The qualified Intermediary may not be the taxpayer or an agent of the taxpayer (realtor, attorney, tax advisor, banker, accountant, employee, etc.) or lineal descendant of the Exchanger.
- EXCHANGER MUST USE A QUALIFIED ESCROW AGENT AND HAVE NO ACTUAL OR CONSTRUCTIVE RIGHTS TO THE SALE PROCEEDS OF THE RELINQUISHED PROPERTY.
- The Qualified Escrow Agent may not be the taxpayer or an agent of the taxpayer (Realtor, attorney, tax advisor, banker, accountant, employee, etc.) or a lineal descendant of the Exchanger.
- The Exchanger must not have access to the sale proceeds of the relinquished property.
- The Exchanger is entitled to all earnings on the escrow funds. These taxable funds must also be restricted in the same manner as the principle.
- The Exchanger choses the Escrow Agent.
- The Exchanger is entitled to obtain security for his funds.
- THE PROPER DOCUMENTATION MUST BE USED IN ORDER TO COMPLY WITH 1031 REGULATIONS.
- EXCHANGER MUST ADHERE TO TIME LIMITATIONS.
- The 45-Day Identification Period* begins at the closing of the relinquished property and requires the identification of like-kind replacement property.
- During this 45-Day Identification Period, you may revoke an identification and make a new one.
- If a like-kind replacement property has not been properly identified to the Intermediary by midnight of the 45th day, the exchange will not work and the taxpayer will be unable to defer capital gains.
- The 180-Day Exchange Period* runs concurrently with the 45-Day Identification Period and requires the acquisition of at least one of the identified replacement properties.
- If the settlement of the relinquished property occurs between October 16 and December 31 of the current year, the 180-day Exchange Period for an individual will be shortened to the income tax deadline of April 15 of the next calendar year unless a timely and proper IRS extension is filed for their return. For a corporation, this filing date is March 15 of the next calendar year unless an IRS extension is filed.
BESIDES TAX REDUCTION, 1031 EXCHANGES CAN ACCOMPLISH MANY INVESTMENT GOALS:
- Estate preservation
- Increased buying power because of greater cash flow
- Increased selling power because the federal capital gain tax liability is deferred
- Exchange property with an increased income (more rental units, higher rental income per unit, lower operating expenses, easier to rent location, etc.)
- The need or desire to relocate a business or investment property
- Exchange for property that requires less management
- Exchange for property that is easier to finance
- Consolidate smaller properties into larger property
- Diversify a large property into several smaller properties
- The need or desire to expand a business into a larger space
All of the above culminates into one significant power – the ability to create expanded growth and wealth accumulation in real estate ownership.
For more detailed information in structuring your 1031 Exchange please contact us at 215-489-3800 or firstname.lastname@example.org.