1031 EXCHANGE RULES - 
CAPITAL GAINS TAX DEFFERAL

ADVANTAGES OF 1031 EXCHANGE RULES

The primary advantage of a tax-deferred exchange is that the taxpayer may dispose of property without incurring any immediate tax liability. This allows a taxpayer to keep the earning power of deferred tax dollars while at the same time exchanging assets.

For example, rather than sell an investment property and pay the capital gains tax and then use the net proceeds to buy another property, the 1031 Exchange rules allow an investor to forego paying the capital gains tax and use the total proceeds of the sale to invest in the new property, thereby deferring the capital gains tax until the new property is sold.

Another advantage is that the investor’s heirs get a stepped-up basis on such inherited property. While the investor receives a reduced basis in the property (e.g., the basis in the old property), upon the investor’s death, his or her heirs would receive the property at fair market value at the date of transfer to the heirs. When the heir goes to sell the property, they will pay tax on the difference between the new selling price and the fair market value of the property at the time of inheritance.

LIKE-KIND PROPERTY

1031 Exchange rules require that the two properties be “like-kind” property. The rules consider the exchange of residential investment property for commercial investment property, and vice versa, to be like-kind. However, the property must be in the US, as an exchange of US property for foreign property is not considered “like-kind” under the rules.

DISADVANTAGES OF A 1031 EXCHANGE

The taxpayer should also consider that there are a couple of disadvantages to a tax-deferred exchange, as follows:

1. There will be a reduced basis (i.e., tax value) in the replacement property, since the lower basis from the old property will transfer to the new property. Because of this, the taxpayer will have lower depreciation deductions on the new property than he or she would have had if he or she purchased the property without a 1031 exchange.
2. There will be increased transactional costs for completing a tax-deferred exchange, as the owner will incur additional professional fees.
3. The taxpayer may not use any of the net proceeds from the disposition of the property for anything except reinvestment in real property. Otherwise, there will be tax consequences on the amount of the proceeds not used as reinvestment.

QUALIFIED INTERMEDIARY

A 1031 Exchange requires a Qualified Intermediary, as defined by Section 1031 of the Internal Revenue Code, to handle the entire process.

All of the proceeds from the sale, including non-cash proceeds (such as a boat that you might receive in trade in addition to the property), must go to the Qualified Intermediary to be used for the purchase of the new property. Anything received directly or indirectly by the seller (no matter how insignificant) will disqualify the entire transaction, resulting in the recognition of the entire gain (and in the case of a Foreign Buyer, resulting in FIRPTA withholding).

VERY SPECIFIC RULES RE: THE IDENTIFICATION
AND EXCHANGE PERIODS

1. The new property must be located within the US.
2. From the closing date of the old property, the seller has 45 calendar days to provide the Qualified Intermediary with a list of properties they want to buy (this list is called “The 45-Day List” and there is typically more than one property on the list in case a deal falls through).
3. From the closing date of the old property, the seller has 180 calendar days to purchase one or more of the properties on The 45-Day List;
4. The seller of the old property must take title to the new property in the same legal name in which they owned the old property.
5. The seller must buy new property for an amount equal to, or greater than, the sale price of the old property.
6. Cash from the sale of the old property, after paying closing costs and liabilities, must go the Qualified Intermediary and be used for the purchase of the new property.

The 45-day timeline must be strictly followed, as it is not extendable in any way, even if the 45th day falls on a Saturday, Sunday or legal US holiday. The Exchange Period ends at exactly 180 days after the date on which the person transfers the property relinquished or on the due date for the person’s tax return for that taxable year in which the transfer of the relinquished property has occurred, whichever is earlier. Again, the 180-day timeline must be strictly followed, as it is not extendable in any way, even if the 180th day falls on a Saturday, Sunday or legal US holiday.

FOREIGN SELLERS CAN ALSO QUALIFY FOR
1031 TREATMENT OF THEIR ASSETS

The US government makes it possible for a Foreign Seller to use the 1031 Exchange provisions. In addition to the normal rules noted above, FIRPTA imposes an additional requirement upon 1031 Exchange rules in order to avoid the 10% withholding. The additional requirement is that the individual responsible for transferring the old property from the Foreign Seller to the buyer/transferee (such as a title or escrow company) must receive from the Foreign Seller either:

1. A Withholding Certificate issued by the IRS that sanctions the particular exchange and allows the transferee to avoid withholding any tax, or;
2. Notice from the Foreign Seller that certifies that the seller has applied for a Withholding Certificate.

First, any foreign property owner should plan ahead to obtain an ITIN far in advance of transferring any property, and to apply for a withholding certificate as soon as any property transfer has been arranged. Second, it is critical that any Foreign Seller wishing to complete a 1031 Exchange consults with a knowledgeable, professional, qualified intermediary early in the sale process, and as well procures tax or financial counsel from experienced advisors, to assist them with the closing and US tax filing process. If you would like references for a Qualified Intermediary, please let us know.

For more information about the issues facing Foreign Nationals, get the Foreign Buyer’s Guide.