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The 1031 Exchange Company

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1031 Basics

 

A properly structured 1031 ‘Like-Kind’ Exchange allows an investor to sell a property, to reinvest the proceeds in a new property, and to defer all capital gains. 

IRS Section 1031 (a)(1) states:


“No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment, if such property is exchanged solely for property of like-kind which is to be held either for productive use in a trade or business or for investment.“

Frequently Asked Questions

Please reach us at ExchangeSupport@The1031X.com if you cannot find an answer to your question.

Forward 1031 Exchange

Whether you choose a simultaneous or delayed forward exchange, both have the same steps to complete.  Upon selling your asset (relinquished property), you have 45 days to identify what asset (replacements property) you will be acquiring.  Upon completion of the 45 days, you will have an additional 135 days to close escrow on the replacement property.  The total transaction cannot exceed 180 days from the close of escrow on your relinquished property.


Reverse 1031 Exchange

As its’ name states, a Reverse 1031 Exchange is where you acquire an asset (replacement property) first, then have 45 days to identify what asset (relinquished property) you will be selling.   You will then have an additional 135 days to complete the sale of your relinquished property.  Upon the close of escrow, you can either pay yourself back for the acquisition, or payoff the loan used to acquire the replacement property prior to the selling of the relinquished property.  To complete a Reverse 1031 Exchange, the taxpayer must “park” title to either the relinquished or replacement property with an Exchange Accommodation Title Holder (E.A.T). As your 1031 Exchange Accommodator, we generally act as the E.A.T.


Build to Suit or Improvement 1031 Exchange

A Build to Suite or Improvement exchange occurs when the Taxpayer wishes to make improvements to the replacement property utilizing the sale proceeds of the relinquished property.  This type of exchange also requires an E.A.T during the improvements.  The improvements must be identified within the 45-Day Identification Period and title of the improved property must be passed to the Taxpayer within the 180-Day Exchange Period. When dealing with real estate, it is not necessary for the improvements to be 100% complete prior to title being acquired by the Taxpayer. If the value of the improved property has been increased to an amount equal or greater than the value of the relinquished property, title may be conveyed to the taxpayer. However, the conveyed property must be substantially the same property that was identified.


Simultaneous Exchange

The relinquished property is sold and the replacement property is acquired on the same day (concurrently). 

 In order to qualify for a 1031 Exchange, the Relinquished and the Replacement Properties must both have been acquired and “held for” investment or for use in a trade or business. The amount of time that the property must be “held for” use in a trade or business is not specified in either the Code or the Regulations.


The position of the IRS has been that if a taxpayer’s property was acquired immediately before an exchange, or if the Replacement Property is disposed of immediately after an exchange, it was not held for the required purpose and the “held for” requirement was not met.


There is no safe harbor holding period for complying with the “held for” requirement. The IRS interprets compliance based on their view of the taxpayer’s intent. Intent is demonstrated by facts and circumstances surrounding the taxpayer’s acquisition of ownership of the property and what the taxpayer does with the property. The courts have been more liberal than the IRS on these issues.


Here are some examples of transactions that should be considered to have potential for a finding by the IRS that the “held for” requirement has not been met:

  • The taxpayer acquires Replacement Property and immediately lists the property for sale. The IRS will interpret the intent to acquire the property for resale instead of for investment purposes.
  • The taxpayer receives the Relinquished Property by deed from a partnership and immediately proceeds to sell/exchange it  (aka “drop and swap”).
  • The taxpayer acquires Replacement Property and immediately converts the property to a personal residence.
  • The taxpayer acquires Replacement Property and immediately transfers the property to a corporation, partnership or LLC.

Like-kind Property

The following types of property generally WILL qualify as like-kind property:

  • Single-family residences
  • Multi-family residences
  • Commercial office space
  • Retail shopping centers or strip malls
  • Industrial warehouses
  • Vacant or undeveloped land
  • Oil and gas interests
  • Mineral rights
  • Water rights
  • Tenant-in-common (TIC) property interests
  • Delaware Statutory Trust (DST) property interest
  • Vacation rentals


Non-like-kind Property

The following types of property will generally NOT qualify as like-kind property:

  • Personal use assets
  • Primary residences
  • Second homes
  • Vacation homes (personal use)
  • Property held for sale
  • Property held for development
  • Property acquired for conversion, then sold
  • Property acquired to fix-up and sell
  • Securities
  • Cash
  • Stocks
  • Bonds
  • Mutual funds
  • Interests in an Entity
  • Partnership interests owned in a general or limited partnership
  • Membership interests held in a limited liability company (unless it is a single-member LLC)
  • Shares of stock in a corporation

Foreign Property

As a result of the Revenue Reconciliation Act of 1989, real property located within the United States and real property located outside of the United States are no longer of like-kind. However, foreign property may still be exchanged for other foreign property.  Section 7701 defines the borders of the United States as all fifty states and the District of Columbia. For purposes of the 1031 code, the Internal Revenue Service defined the borders of the U.S. to include the U.S. Virgin Islands given the Exchanger is: (1) A citizen or resident of the United States and (2) Has income derived from sources within the U.S. Virgin Islands, is effectively connected to the performance of a trade or business in the U.S. Virgin Island or files a joint return with an individual who derives an income or is connected to a trade or business within the U.S. Virgin Islands. Both requirements must be satisfied to exchange real property in the fifty states and real property located in the U.S. Virgin Islands. Puerto Rico is not eligible for 1031 eligibility while real property located in Guam is eligible. 


Vacation/Second Homes

Revenue Procedure 2008-16  provides specific safe harbor language that clarifies when your vacation home, second home or primary residence that was converted to investment property would be considered as “qualified use property” and therefore qualify for 1031 Exchange treatment pursuant to Section 1031 of the Internal Revenue Code, although a safe strategy is to convert the second home into an investment property and rent out the property at fair market value for two years prior to the sale and exchange of the property. Alternatively, the owner could rent out their second home for a minimum of 14 days at fair market value and limit their own personal use to 14 days per year for the two years prior to the sale of the property or 10 percent of the number of days that the property is rented at fair market value during each year.


The IRS has very specific definitions regarding personal use if for any part of a day the property is utilized by the owner. This includes the owner who has an interest in the second home or vacation property as a tenant-in-common interest. Furthermore, use by any member of the owner’s family counts as personal use days unless the second home or vacation property is rented out to those family members as a full time principal residence at a fair market rent.
Another IRS requirement specifies that if the owner rents out the vacation or second home property at less than fair market value, the days rented will be considered personal use days. Lastly, an additional rule defines that any use by the owner who uses the property under an arrangement which enables them to use some other property is considered personal use. With so many intricate IRS rules regarding vacation and second home properties, always check with your tax advisor.

1031 Exchange 

Section 1031 of the Internal Revenue Code allows you to exchange real or personal property that was used for rental, investment, trade, or business for like-kind real or personal property that was used for rental, investment, trade, or business to defer your capital gain, ordinary income, and depreciation recapture taxes.


1033 Exchange 

Section 1033 of the Internal Revenue Code covers various forms of involuntary conversion of taxpayer property. Conversions occurs when property is destroyed, stolen, condemned or disposed of under threat of condemnation and the taxpayer receives other property or money in payment (e.g., insurance proceeds or a condemnation award).


121 Exclusion

Section 121 of the Internal Revenue Code allows homeowners who have resided in their residence for at least two of the last five years a tax exclusion.  Single taxpayers are entitled to a $250,000 exclusion and married taxpayers filing jointly are entitled to a $500,000 exclusion.  An exclusion allows you to have a gain on the sale of your primary residence up to the maximum limit without having to pay capital gain taxes.  Any gain over and above these exclusion limits is taxable.


721 Exchange

Section 721 of the Internal Revenue Code allows you to exchange investment real estate for an interest in a Real Estate Investment Trust (REIT).

Defer Capital Gains. Build and Grow Your Real Estate Wealth Faster. Improve Income and Asset Quality. 


A 1031 Exchange is a wealth building tool, not just a tax code.  Investors who are well advised use this strategy to keep their wealth in their family.  The concept is to exchange throughout your life, creating and keeping the wealth throughout one’s life.  When you pass away, your family inherits the assets, and a full step up in basis occurs.  This means your family will inherit these assets and the tax liabilities are removed.  A 1031 exchange is like a 401k for property – but you don’t have to wait until you’re 70 to enjoy your wealth! 

timing

The successful completion of a 1031 Exchange transaction requires you to comply with certain 1031 Exchange deadlines pursuant to Section 1031 of the Internal Revenue Code.  The 1031 Exchange deadlines consist of the 45 calendar day identification deadline and the 180 calendar day 1031 Exchange completion period.  These 1031 Exchange due dates cannot be extended, unless the President of the United States declares a natural disaster area that affects the properties or parties involved with the 1031 Exchange transaction.


45 Calendar Day Identification Deadline

When completing a 1031 Exchange transaction you must identify your potential like-kind replacement properties to your Qualified Intermediary no later than midnight of the 45th calendar day following the close of the relinquished property sale transaction.  Holidays and weekends count. The formal identification should be made in writing to your Qualified Intermediary via email, facsimile, U.S. Mail, or overnight courier.  You can change your mind by formally revoking the identification of your like-kind replacement properties and subsequently submit a new identification form at any time during your 45 calendar day identification period, but you cannot change your mind after the 45 calendar day identification period has expired.  Revoking and submitting a new identification form does not change or reset the original 45 calendar day identification deadline.


Failure to identify like-kind replacement properties within the 45-calendar day window will result in a failed 1031 Exchange transaction and the transaction becomes a taxable sale.


180 Calendar Day Exchange Period

You must complete your 1031 Exchange transaction, which includes the conveyance (receipt) of title to all of your like-kind replacement properties that you intend to acquire, no later than the earlier of:

1) Midnight of the 180th calendar day following the close of the relinquished property sale transaction,

Or

2.) The due date of your federal income tax return for the tax year in which the relinquished property was sold, including any extensions of time to file.


You do not need to be concerned about part (2) above unless the first relinquished property transaction sold and closed on or after October 17th and on or before December 31st of any given tax year, which would mean that the 180th calendar day would fall after April 15.


You will have less than 180 calendar days to complete your 1031 Exchange transaction if you have a 1031 Exchange transaction closing on or after October 17th and on or before December 31st of any given income tax year, unless you file for an extension of time to file your federal and, if necessary, state income tax returns.  Once the extensions of time have been filed, you must complete your 1031 Exchange transaction within the 180 calendar days before you actually file your Federal and, if applicable, state income tax returns.

Identification

3-Property Rule

95% Rule Exception

3-Property Rule

 The exchangor can identify a maximum of three (3) like-kind properties without regard for the total aggregate value of the properties identified. 

200% Rule

95% Rule Exception

3-Property Rule

 The exchangor can identify as many like-kind properties as they wish as long as the total aggregate value of all of the properties identified does not exceed 200% of the sale price of the relinquished property. 

95% Rule Exception

95% Rule Exception

95% Rule Exception

 If the exchangor identifies more than three (3) properties and exceeds the 200% limitation, the exchangor must purchase 95% of the aggregate value of the identified properties. 

what is a qualified intermediary?

A Qualified Intermediary (QI), often referred to as a facilitator or an accommodator, is an unrelated, independent professional facilitator (third-party) authorized to receive and hold exchange funds (the sale proceeds) of the relinquished property and to facilitate the exchange – In accordance with IRS and Treasury Regulations.


By using a Qualified Intermediary to hold your exchange funds, this allows you to successfully execute the tax deferred exchange which prevents the exchanger from taking ‘constructive’ or (actual receipt) of the funds from the sale of the relinquished property (which would disqualify your 1031 Exchange transaction). 

Legal notice

Legal Notice

 

Under the Tax Cuts and Jobs Act, Section 1031 now applies only to exchanges of real property and not to exchanges of personal or intangible property. An exchange of real property held primarily for sale still does not qualify as a like-kind exchange. A transition rule in the new law provides that Section 1031 applies to a qualifying exchange of personal or intangible property if the taxpayer disposed of the exchanged property on or before December 31, 2017, or received replacement property on or before that date. 

Thus, effective January 1, 2018, exchanges of machinery, equipment, vehicles, artwork, collectibles, patents and other intellectual property and intangible business assets generally do not qualify for non-recognition of gain or loss as like-kind exchanges. However, certain exchanges of mutual ditch, reservoir or irrigation stock are still eligible for non-recognition of gain or loss as like-kind exchanges.  

To report a like-kind exchange, taxpayers must file Form 8824, Like-Kind Exchanges, with their tax return for the year the taxpayer transfers property as part of a like-kind exchange. This form helps a taxpayer figure the amount of gain deferred as a result of the like-kind exchange, as well as the basis of the like-kind property received, if cash or property that isn’t of like kind is involved in the exchange. Form 8824 helps compute the amount of gain the taxpayer must report.

For more information about this and other tax reform changes, visit irs.gov/taxreform


1031 Exchanges now limited to real property, visit: www.irs.gov/newsroom/like-kind-exchanges-now-limited-to-real-property 


1031 Exchange fact sheet, visit: www.irs.gov/pub/irs-news/fs-08-18.pdf 


1031 Exchange like-kind tax tips, visit: www.irs.gov/businesses/small-businesses-self-employed/like-kind-exchanges-real-estate-tax-tips


Reporting like-kind exchange, CA FTB, visit: www.ftb.ca.gov/file/personal/reporting-like-kind-exchanges.html – www.ftb.ca.gov/forms/2018/18_3840.pdf

Disclaimer

 

The 1031 Exchange Company – (The 1031X) is a qualified intermediary that specializes in facilitating 1031 exchanges. The 1031X is not a real estate broker nor a law-firm and does not provide real estate tax, legal or accounting advice. You should consult your own real estate broker, tax, legal and accounting advisor (s) before engaging in any transaction.


The actual deadline for completing an exchange is the earlier of either 180 days from the date on which the Exchanger transfers the relinquished property, or the due date, including extensions filed by the Exchanger, for the Exchanger’s tax return for the year of the transfer of the relinquished property. Consult your tax advisor regarding your tax filing requirement dates.

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