The Real Estate Investor's Tool, The 1031 Exchange

A 1031 exchange is a tool for investors to keep appreciation in their investments properties by deferring the payment of any taxable capital gains on the sale or real estate. The 1031 designation is the actual Internal Revenue Code article that contains provides the rules and regulations of the property transfer. The section allows the exchange of investment or business property for another investment or business property without paying the capital gains tax if the property received is of the same “like kind.” This section is extremely complicated and technical. The transaction must be handled correctly from the beginning.

 

Property as Defined by IRC §1031

Eligible property is property held for productive use in a trade or business or for investment that may be exchanged for other “link-kind” or “like-class” property. IRC §1031(a)(1). A person’s private home is an ineligible product.

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Timing is Everything in a 1031 Exchange

Generally, at the time of the sale, of the “relinquished property,” the sell or “exchangor” does not yet know what property he or she wants to acquire, or the closing or the replacement property cannot be accomplished simultaneously with the sale of the relinquished property. In such a case, an “intermediary” is used to defer the exchange and hold the sales proceeds from the sale of relinquished property. It is critical that the proceeds from the sale of the relinquished property are not paid to the sell and remain with the intermediary, otherwise the taxable event will have occurred and a tax liability will result. As such, “constructive receipt” of the proceeds will invalidate the 1031 exchange.

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If it is a deferred tax exchange (1031), than the exchangor must identify the replacement property within 45 days of the settlement of the relinquished property. Notice, “the exchangor must identify the replacement property…” this does not mean that the exhcangor must have purchased or submitted an offer on a replacement property, only that it has been “identified”. The exhcangor may identify up to three possible replacement property. The identification of the possible replacement properties is given to the intermediary.

 

The exchangor must close on the purchase of the replacement property within 180 days of the closing of the relinquished property by the due date on the tax return for the exchanger. The timing rules set forth by the IRS are critical to the success of any investor, a last minute delay can result in an investment losing the 1031 designation.

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The Short and Sweet 1031 Process

Thus, when an investor has a 1031 investment or business property, the IRS provides strict timelines for the sale and exchange of the 1031 designated investment. Otherwise, the investor will have a tax liability and need to pay capital gains tax on any recognized gains on the sale of the 1031 property. Accordingly, when a 1031 property is sold, the exchanger has 45 days to provide a written list to the intermediary of up to three replacement properties. Within 180 days of the sale of the 1031 property, the exchanger must close on one of the replacement properties identified to the intermediary.

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Have Questions or Want More Information

The above comments are intended as an introduction to legal issues that may be involved in a 1031 real transaction and not as legal advice or opinions.  If you have any questions, you should contact one of our attorneys.

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