Category: Loan

The best thing about Section 1031 is that its benefits are available to large, medium, and small investors. The general misconception is that this section only provides opportunities to defer taxes on capital gains for owners of large commercial properties. But the fact is that if one has a qualified intermediary, then all kinds of investors can benefit from this section.

There is no dearth of real estate firms that provide an exhaustive list of 1031 properties. These firms generally also provide the services of a qualified intermediary. There are “simple gains” calculators available on the Internet that can help one to calculate the capital gains tax one would be able to save through the tax exchange transaction of a real estate property. Over the last one and one-half decades, there has been a phenomenal growth in transactions that qualify under the tax exchange laws. The IRS has also tried to make things easier by simplifying this law and plugging loopholes. Those who have lost out on the opportunity of utilizing this provision to save taxes can attend any of the seminars, which are regularly held in various cities to explain how to avail the opportunities under this section.

Prior to 1990, this section was quite complex and difficult to understand. But now, an individual can easily make out how this section operates. It is still advisable, however, that before you go for exchange you should consult your attorney or a qualified intermediary. There are certain issues pertaining to the partnerships, tenants-in-common, and transaction between spouses that need to be taken care of before you make a final decision.

However, large numbers of properties are now available in the markets that qualify under this section, and there are several firms that are exclusively dealing with the sale and purchase of such properties.

Section 1031 in the Internal Revenue Service is a boon for a prospective investor, selling an investment property and wanting to make a profit by reinvesting in a similar property elsewhere in the country. This wonderful concept works on the principle of gain rolling from the old to the new.

There is widespread ignorance on the modalities about this exchange; as a result, 30-40 percent of property owners end paying tax during the sale. Exchange 1031 not only fructifies into essential tax savings, but also makes possible the swapping of property in the fairest manner at places of choice. No wonder that the 1031 Exchange excites the property market so much.

The new income-generating replacement property gives the investor the double gain of added income and savings from tax that would have otherwise gone to the IRS coffers.

Besides saving the buyer from a huge tax burden coming in the guise of capital gains, the instrument offers maximum immunity and flexibility in reinvesting the money gained from the sale in a replacement property within a given period.

The exchange being time-bound is no kid’s play either. In every exchange of this kind, Qualified Intermediaries (QI) plays a crucial role connecting the buyer and seller. The Federal Tax Code makes service of QI mandatory since 1991 in any exchange.

The federal nature of the 1031 Exchange regulations make the Qualified Intermediary play a wizard in guiding and structuring the exchange, satisfying all parameters and suiting the goals of the clients. It is the QI who does the paperwork required by the IRS to document the exchange. The QI carefully prepares all documents and serves the parties with copies of the exchange agreement, novation agreement and escrow instructions.

The Exchange Agreement reads like a contract between the Exchanger and a Qualified Intermediary. The Exchanger explicitly agrees to transfer his old property to the Intermediary, in lieu of a new property to be supplied by the latter within 180 days. The contract outlines all terms and conditions under which the exchange of properties should take place.

For a 1031 Exchange to take effect, both the old property as well as the new property should be in the category of investment property, capable of generating income. The examples could be rental property, bare land, vacation homes or more.

As soon as the old property is sold, within 45 days the seller has to come out with a list containing two or three probable properties fit for replacement. And the whole process of purchasing the new property or replacement property from the list must be over in a period of 180 days.

The exchange becomes bona-fide only when the title stays intact and whosoever held title to the old relinquished property gets the title of the new property.

In between the sale and purchase of property, the seller of the old property would get no access to the money he accrued from the sale, as the money will be vested with the ‘Qualified Intermediary’ till the exchange gets over.

This 1031 Exchange process has matured and had many names in the past including Like Kind Exchange, Deferred or Delayed Exchange, Simultaneous or Concurrent Exchange, Starker Trust or Exchange, Alderson Exchange, Reverse Exchange, Two, Three, or Four Party Exchange and Baird Exchange.

In a 1031 Exchange, the main services come from a qualified intermediary (QI), also known by names like facilitator or accommodator. The services are offered on fee-for-service basis. The services from the QI include paperwork, oversight, escrow services and making a bona-fide exchange agreement under section 1031 of the Internal Revenue Code.

For Deferred Exchange treatment, the IRS and the Treasury Department have very rigid requirements. Therefore, to pass these requirements, the services from an experienced professional are essential.

To get the services right, it is essential to ascertain the credentials of the service provider before hiring. In a 1031 Exchange, physical possession or receipt of the money resulting from sale of the property is not allowed, and money is held by the QI only. Therefore, his credibility in terms of bonding, background, reputation and financial strength of are crucial.

The QI is supposed to put the exchange fees in a separate account for the taxpayer, and not commingle that money with any other exchange.

There are several private agencies that maintain a database of qualified intermediaries across the United States. They can be of use in selecting the right intermediary with a good reputation, high level of bonding, competitive fee schedule, financial strength, expertise and integrity.

In the exchange process, the quality of the services is marked by speed, accuracy and safety. A good QI will have concern for the safety of the client’s funds. Through unique exchange accounts he can ensure that the funds cannot be deposited or withdrawn without signatures from both the exchanger and the company. Many taxpayers had the bitter experience of exchange funds misused by unscrupulous intermediaries. Every aspect of the exchange has to be managed according to the IRS rules and regulations.

The build-to-suit exchange is now becoming popular, where the QI is a major player. Also called construction or improvement exchange, this variant has the QI himself acquiring fee ownership of the replacement property and making improvements to it.

After the necessary improvements are done, within the exchange period of 180 days, the ownership is then transferred to the Exchanger.

This new variant of the exchange gives the investors a high degree of flexibility and the opportunity to improve upon an existing property or construct a new replacement property itself. Thus, the range of services provided by the QI and associates are unlimited from the word go.

In a 1031 Exchange an investor sells his property, called “Relinquished Property,” to acquire a “Replacement Property” without attracting tax on capital gains.

The whole exchange is overseen by a Qualified Intermediary (QI), a middle-man who provides services of paperwork, oversight, escrow and expertise to ensure that the transaction conforms to Rules under Section 1031 of the Internal Revenue Code.

Now, let us see what all properties qualify for 1031 Exchange. Real estate in general, for income tax purposes, has been divided into four categories- business use, investment, personal use and outright sale. Of them, the last two are unfit for 1031 Exchange.

Then comes the foremost stipulation: the new investment must be in a like-kind property. But this is not a blanket barrier either. It does not restrict that the exchanged properties must be like the photocopy of the other property in all respects, as in a bare land for bare land situation. It can be any real property held for investment or trade or business that can qualify for this exchange with a similar kind of real property used in trade or business.

After the sale of the first property or relinquished property, the investor must identify the replacement property in 45 days from the date of transfer of the relinquished property. This period is called “Identification Period” and the whole exchange must be over in 180 days, known as the Exchange Period.

A maximum of three properties can be identified for possible exchange. The binding Rule is that their aggregate fair market value (FMV) at the end of the identification period should not exceed 200 percent of the aggregate fair market value of all relinquished properties on the date of transfer of the relinquished properties.

There are exceptions too. In some cases, if a replacement property is received before the end of the identification period, that too will be treated as properly identified even if the three-property Rule and 200% Rule are being violated.

In that case, the fair market value of that replacement property must be at least 95% of the aggregate fair market value of all the identified replacement properties. This is known as the “95 percent Rule.”

In the exchange, it is compulsory that the investor has to reinvest all the proceeds from the sale of the relinquished property. If the exchanger fails to do so, the balance “cash boot” becomes taxable as capital gain.

The investor must always acquire the replacement property with equal or greater debt. If the exchanger does not acquire a replacement property with equal or greater amount of debt, the IRS deems it as reduction in debt and a benefit accruing to the exchanger, hence taxable, until and unless it is offset by adding equivalent cash to the replacement property purchase.

So it turns out that it is the qualified intermediary who holds the key to the entire transaction and makes sure that all proceeds of the sale of first property is reinvested and all Rules are strictly followed and equity is preserved. Having the best QI at your service then becomes the key to a successful 1031 exchange.