In the dynamic landscape of real estate investing, Section 1031 of the U.S. Internal Revenue Code stands out as a powerful tool for investors seeking to optimize their portfolio growth while deferring capital gains taxes. Commonly referred to as a ‘1031 exchange,’ this provision allows investors to reinvest the proceeds from the sale of investment property into new property and defer all capital gains taxes.

This strategic maneuver not only preserves capital by postponing tax liability but also enables the continuous escalation of investment value through the acquisition of potentially higher-yielding properties. As we dive into the intricacies of 1031 exchanges, we uncover the critical criteria, processes, and benefits that make this tax-deferral mechanism a cornerstone of savvy real estate investment strategies.

What is Section 1031?

Elimination of tax § 1031 - “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 for productive use in a trade or business or for investment.” §1031 provides for deferral of taxes, not complete elimination. The unrecognized gain passes to and is reflected in the basis of the replacement property.

• Why look into doing an exchange?
  • Deferring tax payment allows funds to keep working for you.
• Who can take advantage of an exchange?
  • Almost any tax-paying individual or legal entity. Must follow tax-payer ID.
• Common situations leading to 1031 Exchange Advisory:
  • Business Relocation
  • Sale of Business
  • Investor looking to change investments due to market forces
  • Owner wants out of Landlord headaches (Passive vs Active)

1031 Exchange Example

Capital Gain vs Equity

• Capital Gain
  • The difference between the amount realized on the sale of property and the adjusted basis.
• Equity
  • The difference between the market value of the property and all financing and debts encumbering the property. Capitals gains tax is based on capital gains not on equity.

What are the 3 Primary Prerequisites for a 1031 Exchange?

1. Relinquishes Property "Like-Kind"
   • Yes
     • Trade or Business
     • Investment Use (Ex: Rental)
   • No
     • Personal Use (Ex: Personal Residence)
     • Property Held Primarily for Sale (IRS uses the term "dealer")
     • A dealer can have investment property if segregated from inventory.
2. You have 45 days to identify a replacement property (typical "Forward Exchange") and 180 days to close
3. You must use a Qualified Intermediary (QI)

Lets dig into these further.

What is Like-Kind?

Capital gain tax deferment pursuant to IRC §1031 requires the exchange of “like-kind” relinquished property for other “like-kind” replacement property.

Contrary to the commonly held misconception that exchanged properties must be of the exact same type, the actual definition of “like-kind” is very flexible.

“Like-kind” property includes, but is not limited to:

• Commercial Properties
• Delaware Statutory Trust (DST) interests
• Oil and Gas interest
• Mineral, water or air rights
• Single-family or multi-family
• Land or Farm property
• Vacation homes (w/ certain caveats)
• Tenant-in-common (TIC) interests

“Like-kind” property does not include a primary residence or properties located outside of the United States.

45 Days in the Exchange Life-Cycle

Rules to follow when identifying a replacement property:

1. 3-Property rule:
   
   • The Exchanger identify up to 3 potential replacement properties, without regard to their value.
2. 200% rule:
   • The Exchanger may identify an unlimited number of properties, but the total value of these properties cannot exceed 200% of the value of the relinquished property.
3. 95% rule:
   • The Exchanger may identify an unlimited number of properties, but must acquire replacement properties with an aggregate fair market value (FMV) equal to at least 95% of the aggregate FMV of all the identified properties.

Key Takeaways

• Seller cannot receive or control the net sale proceeds – the proceeds must be deposited with a Qualified Intermediary (QI).
• Replacement property must be “like-kind” to the relinquished property.
• The replacement property must be identified within 45 days from the sale of the original property.
• The replacement property must be acquired within 180 days from the sale of the original property.
• The cash invested in the replacement property must be equal to or greater than the cash received from the sale of the relinquished property.

Role of the Qualified Intermediary

A Qualified Intermediary (QI) is an individual or entity who facilitates a 1031 exchange, a type of real estate transaction that allows investors to defer capital gains taxes by reinvesting the proceeds into a like-kind property.

A QI creates documentation, holds the exchange proceeds in a separate account, and provides input to the investor and the closing parties to ensure compliance with the IRS rules. A QI must be a neutral party and not related or married to the investor. Choosing the right QI is essential to a smooth and valid exchange.

• Important to work with a QI with significant exchange experience
• The qualified intermediary is an excellent resource and frequently involved in proactive planning so access and availability are essential
• Prevents constructive receipt of proceeds
• Can advise on more complex exchange strategies including reverse and improvement exchanges

Common 1031 Mistakes

1. Forgetting to set up your exchange before closing
   • You must set up your exchange with your qualified intermediary before you close on property you are selling.
2. Looking for a full tax deferral but not buying equal or greater than
   • Most exchangers want to fully defer all taxes. But if you do not purchase new property with a value equal to or greater than the property that is being sold, full deferral will not happen. Important to understand your debt and equity needs when looking for a replacement property.
3. Not identifying on time
   • From the time your relinquished property closes, you have 45 calendar days to identify your replacement property. If you do not identify a property until after the 45 days, that property will not qualify for 1031 tax deferral treatment. Timing rules are strict and cannot be extended even if the 45th day falls on a Saturday, Sunday or legal holiday. Keep in mind that you can change your identification at any time prior to the expiration of the identification period. Just make sure this happens before day 45.
4. Waiting to look for Replacement Property and Difficulty Closing
   • 1031 deadlines can come very quickly. In competitive markets, finding, financing, identifying (45 days) and then closing (180 days) on replacement property may be a challenge. In a world of competing interests is the exchanger getting good advice.
5. Making sure your exchange funds are safe
   • 1031 Qualified Intermediaries are not regulated by the Federal government or most State governments. This means that there are no uniform regulations or laws concerning how your funds are deposited, invested, or secured by Qualified Intermediaries (QIs). QIs are not uniformly required to provide insurance or other protections for your exchange funds. It is up to the taxpayer to determine the competency and safety of their chosen QI. Therefore, if your funds are lost or misappropriated by a QI that doesn’t provide adequate protections, the loss is borne by you.