I. PURPOSE
The 1031 Exchange serves one purpose: to defer capital gains tax on the sale of real property held for business or investment.
The 1031 Exchange takes its name from Section 1031 of the Internal Revenue Code, which is federal tax law. If property is sold and replaced following the rules of that section, the gain will not be recognized – meaning no capital gains tax will be due. This could result in significant savings, given that federal capital gains tax rates are up to 20%, depending upon the filing status and income of the taxpayer. Recapture of depreciation is taxed at a higher rate, up to a maximum of 25%.
Most states also assess capital gains tax on real estate sales. California, for example, has a maximum capital gains tax rate of 13.3%. Together with the federal tax, this means a taxpayer selling real estate in California may have to pay over 33.3% in capital gains taxes.
By deferring those taxes, the 1031 Exchange enables reinvestment of large sums that otherwise would immediately go to taxes.
II. KEY TERMS
To discuss 1031 Exchanges, we need to know a few key terms. The Exchangor is the taxpayer who sells investment real property to replace it with other investment property to defer capital gains tax. The Relinquished Property is the business or investment property the Exchangor sells. The Exchangor will purchase the Replacement Property to defer capital gains tax on the Relinquished Property. The Accommodator or Qualified Intermediary holds the funds from the sale of the Relinquished Property until the purchase of the Replacement Property, to be sure the Exchangor never holds those funds.
III. REQUIREMENTS OF A 1031 EXCHANGE
Section 1031 has been in the Internal Revenue Code since 1921. Its rationale is that a trade of one property solely for a like-kind property continues the taxpayer’s investment and should not therefore be a taxable event at the time of the trade.
To qualify for tax deferral under Section 1031 today, the Exchangor must meet several requirements.
Section 1031 allows the Exchangor to defer federal gains taxes on the sale of a property if: the property is used in a trade or business or held for investment; the property is exchanged for like-kind property as defined by the Internal Revenue Code; and the taxpayer meets certain timeframes for identification and acquisition of the replacement property. To fully defer all capital gains taxes, the Exchangor must reinvest all Net Proceeds from the sale of the Relinquished Property into the Replacement Property and reacquire debt equal to or greater than the debt paid off in the sale of the Relinquished Property or replace that debt with fresh cash. During the exchange, the Exchangor cannot handle the Net Proceeds; they must be held by the Qualified Intermediary.
The Relinquished Property must be real property located in the United States. The Exchangor must hold it for productive use in a trade or business or for investment. This can include raw land, office buildings, duplexes, single-family residences, warehouses, etc. This does not include the Exchangor’s personal residence or property held only for resale. Vacation homes and second residences can qualify for a 1031 Exchange, subject to an additional set of rules regarding rental and personal use of the property.
The Replacement Property must be “like-kind” to the Relinquished Property. This requirement is broad. For example, an office building can be exchanged for vacant land, an apartment building can be exchanged for a single-family rental home, or a duplex can be exchanged for a retail mall. Multiple properties may be exchanged for a single property and a single property may be exchanged for multiple properties. For example, multiple single-family rentals can be exchanged for a hotel.
1031 Exchanges must meet strict deadlines, or the sale of the Relinquished Property will be fully taxable. By midnight on the 45th day after closing on the sale of the Relinquished Property, the Exchangor must unambiguously describe the replacement property in a signed document sent to the Qualified Intermediary. The Exchangor may identify up to three properties, regardless of their value. If the Exchangor identifies more than 3 properties, their total value cannot exceed 200% of the value of the Relinquished Property. Within 180 days of the sale of the Relinquished Property, the Exchangor must close on the Replacement Property.
To fully defer all taxes, the Exchangor must reinvest all net proceeds realized from the sale of the Relinquished Property into the Replacement Property. Any cash or non-cash consideration given to the Exchangor for the Relinquished Property is considered “Boot.” This includes property that is not like-kind and debt relief such as the assumption of a mortgage by the buyer. Boot is taxable.
To fully defer all taxes, the Exchangor must replace the value of any loan paid off on the sale of the Relinquished Property. This can be done by obtaining a new loan on the Replacement Property or by contributing the cash equivalent to the purchase price of the Replacement Property. Some mistakenly think debt must be replaced with debt. The debt can be replaced with cash if the Exchangor has it on hand. Any debt that is not replaced will be taxable Boot.
If the Exchangor touches the Exchange Funds from the buyer, they are considered Boot and taxable. To avoid this, the Qualified Intermediary receives the Net Proceeds from the buyer at the closing of the Relinquished Property, transfers those funds to the seller at the closing on the Replacement Property, and holds them in the intervening period.
Questions arise where the Exchangor is a business entity. The same taxpayer must both sell and purchase the properties. For example, if a corporation or partnership sells the relinquished property, the same corporation or partnership must take title to the replacement property.
However, one member in a partnership cannot exchange that member’s interest alone. If you wish to exchange your interest in a property held in partnership, then you must transfer your interest in the property out of the partnership before the exchange. This is called the “drop and swap.” Although the IRS does not have a timeframe for a drop and swap, many recommend doing it one year in advance of closing on the replacement property, and letting the IRS know you no longer wish to be taxed as a partnership by filing a Section 761(a) election.
Individuals can exchange into or out of single-member disregarded entities, including single member LLCs, revocable living trusts, and some land trusts.
IV. THE FORWARD 1031 EXCHANGE
The most common form of 1031 Exchange is called the Forward Exchange.
Also known as a Standard Exchange, in a Forward Exchange the sale of the Relinquished Property closes before the purchase of the Replacement Property. The buyer must cooperate in the sale to be sure the Net Proceeds – also called the Exchange Funds – from the sale of the Relinquished Property are paid to the Qualified Intermediary (QI) and not to the Exchangor.
The timeline of the Forward 1031 Exchange process starts with the closing when the Exchangor sells the Relinquished Property. At the sale, the Net Proceeds are transferred to the Qualified Intermediary rather than to the Exchangor. Within 45 days, the Exchangor must properly identify the Replacement Property. Within 180 days, the closing must take place on the the Replacement Property. The Exchange does not have to take 180 days; the closing on both properties may take place in a single transaction in a Simultaneous Exchange.
There are two more complicated types of 1031 Exchange. First is the Reverse Exchange, in which the Exchangor acquires the Replacement Property before the sale of the Relinquished Property. Second is the Improvement exchange, also called a Build-to-Suit Exchange or Construction Exchange. In an Improvement Exchange, the Exchangor makes improvements on the Replacement Property during the exchange period. Both these types of exchange require financing, leases, and an Exchange Accommodation Titleholder to hold title to property during the exchange.
V. DRAWBACKS
1031 Exchanges do have a few drawbacks.
The tax basis of the Replacement Property will generally be the same as the basis of the Relinquished Property. This “carryover” basis may yield lower annual and total depreciation deductions than would be the case if replacement property were purchased outright.
Depending in part on the depreciation option the Exchangor chooses, taxes on the Replacement Property may get complex.
With less time to shop around, the Exchangor may pay a higher price for the Replacement Property. The seller, aware of the Exchangor’s time constraints, may insist on a higher price or be less willing to negotiate.
Costs to complete an exchange will be higher than a typical property sale. At the least, the Qualified Intermediary will receive a fee that would not be paid on a straight sale.