Internal Revenue Code Section 1031 allows for the deferment of
capital gains taxes that would otherwise have been due if a person
trades property held for business use or as an investment for another
property
to be held
for
business
use or as
an investment.
CAUTION: Internal Revenue Code Section
1031 Exchanges are complex and can have significant tax and
other financial consequences. Consult an accountant or tax
attorney experienced in this area before starting the exchange
process.
Why Do a 1031 Exchange?
Exchanges are popular among residential income property investors
for the following reasons:
- Move up to a more valuable property
without paying taxes on the capital gains.
- Trade fully depreciated
property for an undepreciated one. After 27.5 years a property
is considered fully depreciated
and loses
that tax advantage.
- Consolidate a number of smaller, self-managed
properties into a larger one with professional management.
- Keep
money invested in real estate by selling and buying simultaneously.
- Relocate
real estate investments by selling in one location and buying in
another.
How Is It Done?
Simply
put, you arrange to sell your investment property. You then assign
the proceeds of the sale
to an entity known as
a Qualified
Intermediary (facilitator). From the date
of the sale, you have 45 days to locate a new investment property
for the exchange.
The qualified intermediary will then buy
the
property
on your behalf,"exchange" the
proceeds in his or her custody from the
prior sale for the new property you have
selected,
then transfer
title of the
new property
to you. All of this must be completed within
180 days of the date of the sale of your
property.
The 1031 Exchange in Detail
- The investor retains the services of tax
attorney or CPA experienced in 1031 exchanges.
GOLIATH can
refer you
to a
professional to
assist you with your specific needs.
- The
investor sells the property with a 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 the
seller to accomplish same
at no additional cost or liability
to the buyer.” The
escrow officer or closing agent contacts
the qualified intermediary and
requests the exchange documents.
- The
investor enters into an 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 IRS requirements,
especially
pertaining to
the proceeds. Along with the 1031
Exchange Agreement, an amendment
to escrow
is signed which names the qualified
intermediary as the seller. Normally
the deed is still
prepared for
recording
from the
investor to the true buyer (direct
deeding). It is not necessary to
have the replacement property identified
at
this time.
- The relinquished property
escrow closes, and the closing statement
names the qualified
intermediary
as the seller
with proceeds
going to the qualified intermediary.
The funds are placed in a separate
account to insure liquidity and
safety. The closing date of the relinquished
property escrow
is day zero
of the
exchange. The
address of the replacement property
must be sent in writing within
45 days, and the identified replacement
property
must be acquired by the investor
within 180
days.
- The investor sends the
address or legal description of the replacement
property
to the qualified intermediary
in
writing
on or before
day 45 of the exchange. It must
be signed by everyone who signed
the
1031
Exchange
Agreement,
and it may
be faxed,
hand delivered
or mailed either to the qualified
intermediary, the seller of the
replacement property
or his agent,
or to an attorney
unrelated
to the investor.
- The investor
enters into an agreement to purchase the replacement
property
which includes
the Cooperation
Clause: “Seller is
aware that the buyer’s
intention is to complete a
1031 Exchange though 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 the
buyer, and the deeding
is actually from
the true seller to
the investor.
- When conditions
are satisfied, and escrow is
prepared to close
(prior to the 180th
day) per the 1031 Exchange
Agreement, the
Qualified Intermediary forwards
the exchange funds to escrow,
and the
closing
statement names the qualified
intermediary as the buyer.
A final accounting
is sent
by the qualified
intermediary
to the investor
showing the funds coming in
from one escrow and going out
to the
other, all without
constructive receipt
by the investor.
- Investor
files Form 8824 with the IRS (and state forms
where
applicable) when
taxes are
filed.
Key Terms
Adjusted Cost Basis – The basis of the new property is
the same as the basis (purchase
price) of property given up minus any
money received by the
investor, less depreciation, plus improvements, plus any gain (or
minus any
loss)
recognized on the transaction.
If the transaction falls
under 1031 (b) or (c) the basis shall be allocated between the properties
received
(other than money)
and for the purpose of
allocation, there shall
be assigned to such other property
an amount equivalent to its fair market
value at
the date of the exchange.
Boot – Cash or
mortgage debt relief
to equalize the exchange
transaction
and results
in a tax liability.
Taxed at the normal
capital gains rate.
Constructive Receipt – The
direct or indirect use
or control of exchange
funds.
Like Kind – The definition by the IRS of property types that
can be exchanged for one another. They must be of “like kind” meaning
the same nature or character,
even if they differ in
grade or quality. Both
properties
must be
located in the United
States.
For our purposes,
this means real property
owned as an investment,
in active use in a trade
or business, or
for the production of
income.
Qualified Intermediary – The
person or corporate entity
that controls the
exchange.
Relinquished Property – The
property being sold by
the investor. Also known
as down-leg
property.
Replacement Property – The
new property being purchased
with the exchange
proceeds
from the relinquished
property.
Also known
as up-leg property.
Starker Tax Deferred
Exchange – A
contract to exchange
properties in the future.
The
investor 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 be
used to facilitate the
transaction.
Sources:
1. Internal Revenue Code
Section 1031 (Title
26 IRC § 1031), “Like-Kind
Exchanges Under IRC
Code Section 1031, ”http://www.irs.gov/newsroom/article/0,,id=179801,00.html
(accessed November
8, 2008).
2. U. S. National 1031
Exchange, “1031 Education,” http://www.usnational1031.com/metroportal/Exchange1031/pdf/US_National_1031_WEB_Presentation.pdf
(accessed August 24,
2008).
3. Wikipedia.com, “Internal Revenue Code Section 1031,” http://en.wikipedia.org/wiki/Internal_Revenue_Code_section_1031,
July 25, 2008.
4. Answers.com “Investment Dictionary: Like-Kind Exchange,” http://www.answers.com/topic/1031-exchange
(accessed August 24, 2008). : A “Core” neighborhood
tends to mirror the
overall trend in the
market place.
(If the market place
is appreciating
at
7% per year, so is
the Core Neighborhood.)
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