Tax Deferred Exchanges

What is an IRS Section 1031 Tax Deferred Exchange? Quite simply, it allows you as the owner of investment property (almost all property that is not your personal residence or second home) to sell your property and buy another investment property, deferring the tax on your capital gains. You do not have to find someone to accept your property in trade for the one you buy. The steps for performing an exchange are not significantly different from those for completing a standard sale. You list the property and attempt to sell it just like any other property. A Buyer is located and they open escrow. An Intermediary is brought into the transaction prior to closing. Suitable replacement property is purchased and the exchange is concluded.

When considering the sale of income or investment property, you as a seller must consider the taxation. When selling property you could owe federal and, in some areas, state capital gains tax. This could mean paying 15% to 40% in taxes on the gain. Instead of paying a large amount to the IRS in taxes you can use that money to buy more real estate. Property that qualifies for preferential tax treatment under Internal Revenue Code section 1031 (IRC 1031) is treated quite differently. IRC Section 1031 states:

"No gain or loss shall be recognized if property held for productive use in a trade or business or for investment purposes is exchanged solely for property of a like-kind".

Investors do not have to exchange for exactly the same type of property as they relinquished. "Like-Kind" does not refer to the nature, character or type of property but just that it also be held for productive use or for investment purposes.

Therefore, if using IRC section 1031, you can exchange raw land for a rental home, an apartment complex for a shopping center or rental houses for an office building. The use of the property is the factor in determining the tax treatment. Provided the property is initially acquired and held for either business or investment purposes, it can qualify as a suitable replacement property.

You must trade "across equal or up" in equity and debt value to completely defer taxes. If you dispose of a property at one value and acquire another property at a lesser value, taxes are due on the difference.

No cash can be received from the transaction (boot), whatever cash is received is taxable. In a 1031 exchange, receipt of cash cannot be offset with a larger debt.

You can dispose of property and have 180 days to acquire another property, the pressure of trying to structure simultaneous closings no longer exists. You are not required to find replacement property which can close the same day of the property being sold. The delayed exchange begins when you enter into a purchase contract. After the first closing, the exchange clock starts ticking. From the settlement date you have 45 days to identify replacement property. From the sale settlement date you have 180 days to actually acquire one or more of the identified properties.

These regulations also require the use of a qualified intermediary in deferred exchanges. Use of a professional Intermediary with no other relationship to the exchangor provides you the mandatory "Safe Harbor" to perform a non-taxable sale.

An Intermediary is substituted, into the contract to sell the property. In theory, the Intermediary becomes the seller but the sale is reported on the tax ID number of the Seller. You will not owe any tax; this is perfectly legitimate under the Treasury guidelines written to clarify Internal Revenue Code Section 1031.

The sale will not be delayed, the buyer will purchase the property for the same contracted price. But instead of paying taxes on the sale, you save 100% of the equity available for purchasing a replacement property. When a replacement property has been found and an offer accepted, the Intermediary will again be substituted as the Buyer of the new property to complete the exchange. The intermediary will use the proceeds from the sale of the original property to purchase the replacement property. The intermediary holds your sale proceeds during the exchange period and you generally will earn interest on these funds.

The code procedure allows you to acquire investment real estate now, when an excellent investment may be available and to sell your property later, when a better price might be obtained., so long as this all happens within 180 days. This is called a reverse exchange. This procedure greatly expands your ability to take advantage of changes in the marketplace and to improve your investment position.

The IRS allows the deduction of brokerage commissions from exchange proceeds as they reduce the amount of equity the tax payer realized. The IRS requires that only the net equity be transferred to the replacement property.

This material is intended to be informational and is not all inclusive; no effort has been made to summarize all of the requirements and issues that may be applicable to a particular situation. This material should be not used as a substitute for independent financial or legal advice. Please consult with your CPA or tax advisor.