Buying Investment Real Estate

SECTION 1031 TAX DEFERRED EXCAHNGE DEFINED

Tax deferred exchanging is an investment strategy that should be considered by anyone who owns investment real estate.  Anyone involved with advising or counseling real estate investors, including real estate agents, lawyers, accountants, financial planners, enrolled agents, tax advisors, escrow and closing agents, and lenders, should know about tax deferred exchanging.

WHAT IS A TAX DEFERRED EXCHANGE?
A tax deferred exchange is a simple method by which a property owner trades one property for another without having to pay any federal income taxes on the transaction.  In an ordinary sale transaction, the property owner is taxed on gain realized by the sale of the property.  But in an exchange, the tax on the transaction is deferred until some time in the future, usually when the newly acquired property is sold.

These exchanges are sometimes called "tax free exchanges," because the exchange transaction itself is not taxed.  Tax deferred exchanges are authorized by Section 1031 of the Internal Revenue Code.  The requirements of Section 1031 and other sections must be carefully met, but when an exchange is done properly, the tax on the transaction may be deferred.

In an exchange, a property owner simply disposes of one property and acquires another property.  The transaction must be structured in such a way that it is in fact an exchange of one property for another, rather than the taxable sale of one property are converted into an exchange by means of an exchange agreement and the services of a qualified intermediary (QI) - a fourth party who helps to ensure that the exchange is structured properly.  The IRS's regulations make exchanging easy, inexpensive, and safe.

MISCONCEPTIONS ABOUT EXCHANGING
People often fail to consider tax deferred exchanging as an investment strategy because they are misinformed about the requirements of exchanging.  However, once their misconceptions have been cleared up, property owners usually find that Section 1031 is worth considering.  Here are a few misconceptions about Section 1031 exchanges.

Myth: Exchanges require two parties who want each other's properties.
Fact: Two-party exchanges are possible, but in reality, such two-party swaps rarely occur.   

Today, an exchange is accomplished with the help of a qualified intermediary and usually involves four principle parties: the exchanger (the taxpayer), a buyer for the relinquished property, a seller of the replacement property, and the intermediary.  The parties often do no know each other and their properties may even be located in different states.

Myth: The like-kind requirement limits an exchanger's options.
Fact: Property must be exchanged for "like-kind"property.  But "like-kind" simply means that real property must be exchanged for real property.  All property is like-kind, so a whole interest may be exchanged for more than one property: a duplex may be exchanged for a four-plex; a single family residence may be exchanged for an office building, etc.  However, real property may not be exchanged for personal property.  Personal property may be exchanged for other like-kind personal property.

Myth: In an exchange, title on the exchanged properties must pass simutaneously.
Fact: The properties do not have to close at the same time.  However, in a deferred exchange, the replacement property must close within 180 days after closing on the relinquished property.  In a reverse exchange, the replacement property must close 180 days thereafter.

ADVANTAGES AND DISADVANTAGES OF EXCHANGING
The primary advantage of a tax deferred exchange is that the taxpayer may dispose of property without incurring any immediate tax liability.  This allows the taxpayer to keep the "earning power" of the deffered tax dollars working for him or her in another investment.  In effect, this money can be considered an "interest free loan" from the IRS.  And this "loan" can be increased through subsequent exchanges.  Moreover, under current law, this tax liability is forgiven upon the death of the taxpayer, which means that the taypayer's estate never has to repay the "loan."  The heirs get a stepped up basis on such inherited property; that is, their basis is the fair market value of the inheritied property at the time of the taxpayer's death.

The taxpayer should also consider the disadvantages of a tax deferred exchange.  These include the following:

1. There will be a reduced basis in the replacement property, resulting from the carryover of the basis of the relinquished property.  This means that the deferred gain will be realized when the replacement property is sold.  The taxpayer will also have lower depreciation deductions. 

2. There will be increased transactional costs for entering into and completing a tax deferred exchange.  These costs include possible additional escrow fees, attorney's fees, accounting fees, and the intermediary's and accomodation titleholder's fees where applicable.  

3. The taxpayer may not (without tax consequences) use any of the net proceeds from disposition of the property for anything except reinvestment in real property.
for anything except reinvestment in real property.

Before deciding whether or not to engage in an exchange, the taxpayer should carefully analyze all of his or her options.  A decision should NOT be based solely on the tax consequences of the transaction.  Rather, business considerations should play the dominant role in the decision.  Business considerations include, but are not limited to the need or desire to : Consolidate (or diversify) investments; obtain greater appreciation on the real property; increase cash flow; relocate a business investment; and eliminate management problems.  Once all the factors have been considered, a taxpayer may, or may not, decide to engage in a tax deferred exchange.

THE PARTIES AND PROPERTIES IN AN EXCHANGE
There are four parties involved in a typical tax deferred exchange: the Taxpayer, the Seller, the Buyer and the Intermediary.

The Taxpayer: The taxpayer (also called the Exchangor) has property and would like to exchange it for new property.  The same taxpayer must dispose of the Relinquished Property and acquire the Replacement Property (the same taxpayer includes a disregarded entity such as a single member limited liability company).

The Seller: The seller is the person who owns the property that the taxpayer wants to acquire in the exchange.

The Buyer: The buyer is the person with cash who wants to acquire the taxpayer's property.

The Intermediary: The intermediary plays a role in almost all exchanges today.  It is usually a corporation or limited liability company.  It may also be called a qualified intermediary or "QI".  It neither begins nor ends the transaction with any property.  It buys and then resells the properties in return for a fee.  The Intermediary can not be related to the taxpayer.

The party who acquires the taxpayer's relinquished property must also acquire the replacement property to make the exchange work.  The taxpayer cannot have a spouse, partnership, multi-member limited liability company or other person acquire the replacement property.  However, a limited liablility company of which the taxpayer is the only member may acquire the replacement property because it is not a separate entity for federal tax purposes.  The properties involved in an exchange have special names too: 

The Relinquished Property: The property originally owned by the taxpayer and which the taxpayer would like to dispose of in the exchange.

The Replacement Property: The new property, that is, the property the taxpayer would like to acquire in the exchange.  In order for an exchange to be completely tax deferred, the replacement property must have a fair market value greater than the relinquished property and all of the taxpayer's equity or more must be used in acquiring replacement property.  This is known as trading up in equity, and it is essential for totally tax deferred exchange.

EXAMPLE:
Tom owns an apartment complex in Tacoma worth $500,00.  He believes the Tacoma Apartments are no longer appreciating in value and accordingly wants to dispose of them.  However, he doesn't want to pay tax on the disposition of the Tacoma Apartments.  While he wants to dispose of the Tacoma Apartments, he wants to acquire a larger property-the Boston Apartments.  Sally owns the Boston Apartments, worth $750,000.  She feels that the Boston Apartments are no longer a good investment for her.  She doesn't want any other real estate; instead, she wants to sell the Boston Aparments for cash.  Bart has money.  He would like to buy the Tacoma Apartments for cash.  Through the assistance of QI (the intermediary), each of the parties will end up with what he or she wants.  When the exchange is complete, Tom will own the Boston Apartments, Bart will own the Tacoma Apartments, and Sally will have cash.  

TYPES OF EXCHANGES
There are a number of different ways tax deferred exchanges can be structured.  They may involve two, three, or four parties, and they may be quite simple or very complex.  The most common structures are explained below involving exchanges using qualified intermediaries.  Reverse exchanges are discussed later.

A. The Two-Party Exchange
Two-party exchanges are rare, since in the typical Section 1031 transaction, the seller of the replacements property is not the buyer of the taxpayer's property.  The two-party exchange, or swap, is the purest form of exchange.  As the name implies, only two parties are involved and they exchange their properties.  Both steps of the transaction occur simultaneously.  Title of the relinquished property is conveyed by the taxpayer to the seller and title to the replacement property is conveyed by the seller to the taxpayer.  

Using our hypothetical characters and properties, Tom exchanges his Tacoma Apartments for Sally's Boston Apartments.  (Sally is in effect both the buyer and the seller in this type of exchange.)  The result is that Tom has title to the Boston Apartments (with a higher market value than the Tacoma Apartments) and Sally now has title to the Tacoma Apartments.  In a two-party exchange, the properties are rarely of equal value, so in addition to the title transfer, one party or the other will pay cash to equalize or balance the equities.

B. The Simultaneous Exchange with Intermediary
Most exchanges today employ the services of an intermediary-a straw party whose sole purpose in the transaction is to facilitate the exchange.  In a simultaneous exchange with an intermediary, title to the relinquished property is transferred directly to the buyer.  The buyer pays cash to the intermediary.  The intermediary pays cash to the seller who transfers title to the replacement property directly to the taxpayer.  The taxpayer thus transfers title to the replacement property directly to the taxpayer.  The taxpayer thus avoids receiving and cash during the transaction, which would be immediately taxable.  

C. The Deferred Exchange with Intermediary
At the time when the relinquished property is transferred to the buyer, the taxpayer often does not yet know what property he or she wants to acquire.  When that is the case, a deferred exchange is necessary.  The structure of the deferred exchange with intermediary is essentially the same as the simultaneous exchange with intermediary, except that, because the replacement property is not known at the time the relinquished property is transferred to the buyer, the two legs of the exchange take place at different times.

The taxpayer has 45 days to identify the property he or she wants as the replacement property.  The transfer of the replacement property must still close within 180 days of the transfer of the relinquished property.

Example: Tom knows that he wants to dispose of the Tacoma Apartments, and Bart knows that he wants to buy the Tacoma Apartments for cash.  Tom does not want to sell the Tacoma Apartments directly to Bart in a taxable sale and then buy another property at a later time.  He wants to do an exchange.  But at this time, Tom doesn't know what property he wants in exchange for the Tacoma Apartments.

The first leg of the transfer takes place as before: The title to the Tacoma Apartments is transferred to Bart.  Bart pays cash to the QI.  Sometime later, but within 45 days, Tom identifies the Boston Apartments as the property he wants.  Within 180 days of the transfer of the Tacoma Apartments, the QI uses the funds from the first leg of the transaction to pay cash to Sally who then transfers title to the Boston Apartments to Tom.  The exchange must be properly documented in accordance with IRS regulations.

SPECIFIC REQUIREMENTS FOR A VALID EXCHANGE

In order for a transaction to qualify for tax deferred treatment under Section 1031, certain requirements must be met.  We have already touched on some of those requirements briefly.  We will examine each of them in more depth now.

A. Qualified Property: 
In general, all property, both real and personal, can qualify for tax deferred treatment.  However, some types of property are specifically disqualified, namely: stock in trade of other property held primarily for sale; stocks, bonds, or notes; other securities of evidences of indebtedness or interest; interests in a partnership of multi-member limited liability company; certificates of trust or beneficial interest; and chooses in action (i.e. interests in lawsuits).  A percentage interest in property as a tenant in common is qualified property if the tenancy in common is carefully structured to avoid recharacterization as a partnership for federal tax purposes.  

B. The Purpose Requirement:
Not every type of property is eligible for tax deferred treatment.  Both the relinquished property and the replacement property must be held for productive use in a trade or business or for investment.  Thus, the taxpayer cannot exchange into or out of the taxpayer's own personal residence, or property held for resale as a dealer.  Vacation homes may qualify if they are rented out by the taxpayer to unrelated persons, or held primarily for investment rather than personal use.

C. The "Like-Kind" Requirement:
Replacement property acquired in an exchange must be "like-kind" to the property being relinquished.  Like-kind means "similar in nature or character, notwithstanding differences in grade or quality."  All real property is like-kind, regardless of whether it is improved or unimproved and regardless of the type of improvement or interest.  Therefore, raw land may be exchanged for land with building.  One property may be exchanged for more than one property.  Real property, however, is not like-kind to personal property.

Remember, while real property can properly be exchanged for real property, the Purpose Requirement discussed still applies; that is, the property, no matter what kind or interest must be held for productive use in trade or business or for investment.

D. The Holding Period:
How long must a taxpayer hold property in order for it to qualify for tax deferred treatment?  The question applies both to the reqlinquished property and to the replacement property.

The holding period is a fact or circumstance to be considered in determining whether the Purpose Requirement had been met.  For example, if a replacement property is acquired and then immediately sold, that might indicate the property was, in fact, acquired for resale and is therefore dealer property and consequently cannot qualify for tax deferred treatment.  A one year holding period is commonly used as a rule of thumb, but has no basis in statutory or case law.  Two years is more prudent.

E. The Exchange Requirement:
Section 1031 specifically requires that an exchange take place.  That means that one property must be exchanged for another property, rather than sold for cash.  The exchange is what distinquishes a Section 1031 tax deferred transaction from a sale and purchase.  The exchange is created by using the intermediary and the required exchange documentation.

F. Time Limits:
There are time restrictions for non-simultaneous (deferred) exchanges.  For those exchanges in which the taxpayer will acquire the replacement property after transfer of the relinquished property, two time limits are established.  The taxpayer is required to identify the replacement property within 45 days after the transfer of the relinquished property, AND the taxpayer must close on the replacement property before the earlier of  (a) 180 days after the transfer of the reliniquised property, or (b) the due date of the taxpayer's federal income tax return (including extensions) for the year in which the relinquished property is transferred.  There are NO exceptions to these time limits!

G. Alternative and Multiple Properties:
Whether one property or more than one property is transferred by the taxpayer as part of one exchange, the number of replacement properties that may be identified is:

1. Up to three properties, without regard to their fair market value.  "The Three-Property Rule."

2. More than three properties, without regard to their fair market value of all these properties, if the total fair market value of all properties at the end of the 45-day identification period does not exceed 200% of the total fair market value of all properties relinquished in the exchange.  (The 200% Rule)

If the taxpayer violates these rules, the penalty is severe; he or she is treated as if no property had been identified.  Any property actually received during the 45-day identification period, however, would still qualify for tax deferred treatment.

H. Related Party Issues:
Generally, if the taxpayer is selling the relinquished property from a related party, such as a parent, child, spouse, or corporation or other entity in which the taxpayer or his or her relatives own greater than 50%.  There are some limited exceptions to this rule, such as when the related party is also doing an exchange.  Also, a taxpayer and a related party may do a two-party swap between each other if the taxpayer and the related party each then hold their replacement property for two years.

I. New Construction as Replacement Property:
If the taxpayer wants to include new construction as replacement property, then the construction must be done prior to the date that the taxpayer acquires title to the replacement property.  Any construction occuring after the taxpayer acquires title does not qualify as like kind replacement property in the exchange.  Typically, the qualified intermediary or accomodation titleholder will acquire title to the replacement property, use the exchange funds for the construction, and then transfer title to the improved property to the taxpayer before the expiration of the 180 day; partial construction also qualifies as replacement property for real property.

CONSTRUCTIVE RECEIPT
If the taxpayer actually receives the proceeds from the disposition of the relinquished property, then the transaction will be treated as a sale and not as an exchange, even if the taxpayer does not actually receive the proceeds from the disposition of the property, the exchange will be disallowed if the taxpayer is considered to have "constructively" received them.

The code regulations provide that income, even though it is not actually in a taxpayer's possession, is "constructively" received by the taxpayer if it is credited to his or her account, set apart for him or her, or otherwise made available so that he or she may draw upon it at any time.  However, income is NOT constructively received if the taxpayer's control of its receipts is subject to substantial limitations or restrictions.

Therefore, a crucial question in every non-simultaneous exchange is whether the taxpayer's control over the proceeds from the disposition of the relinquished property is "substantially limited or restricted."  There are a number of complicated rules to help a taxpayer and his or her advisors structure an exchange so that the taxpayer will not be in "constructive receipt" of the funds.  The principal means is the use of a qualified intermediary, along with a qualified escrow or trust.

A taxpayer is entitled to obtain security for his or her funds in the deferred exchange under the IRS regulations.  In addition, he or she is entitled to interest on those funds even if such interest is used in the acquistion of replacement property.

REVERSE EXCHANGES
If the Taxpayer has found his or her replacement property and must close on it prior to the time that the relinquished property is ready to close, then the transaction becomes a "reverse exchange".  The language of IRC section 1031 does not provide for or prohibit reverse exchanges.  The IRS has created a safe harbor for reverse exchanges that uses the parking procedures discussed below.  Two structures are provided for:

A. Relinquished Property Parked:
In the first structure, the exchange occurs with the taxpayer acquiring the replacement property and conveying the relinquished property to the Exchange Accommodation Titleholder ("EAT"), using an exchange intermediary.

B. Replacment Property Parked:
In the second structure, the EAT acquires the replacement property.  The EAT may construct improvements on the property if needed.  When the taxpayer's relinquished property is ready to close, then the taxpayer will exchange the relinquished property for the replacement property through an exchange intermediary.  

C. The Mechanics:
In reverse exchanges, the EAT cannot be the taxpayer of a disqualified person (basically a person related to the taxpayer, including an entity in which the taxpayer owns 10% or more, or the taxpayer's attorney, CPA, real estate or employee) and must be subject to federal income tax.  The EAT must hold title to the property at all times from the date of acquisition by the EAT until the property is transferred.  The taxpayer and the EAT must enter into a written agreement and the EAT must be treated as the beneficial owner of the property for all federal income tax purposes.  The EAT may lease the parked property to the taxpayer or the taxpayer may manage it.

If a taxpayer has several potential relinquished properties that he or she may sell, then the taxpayer may take up to 45 days after the EAT's acquisition of the replacement property to identify which relinquished property will be exchanged.  And the taxpayer may identify up to 3 alternative relinquished properties, or any number so long as their total value does not exceed 200% of the value of the parked replacement property.

The relinquished property must be sold to an unrelated third party no later than 180 days after the reverse exchange begins.  If the reverse exchange time period exceeds 180 days, then the exchange is outside the IRS safe harbor.  This means that the IRS can challenge the reverse exchange.  A proper reverse exchange can be structured to go beyond 180 days, but the EAT must be considered the taxpayer's agent and have benefits and burdens of ownership.