1031 Information

A key element of any solid business plan is the protection of assets. Minimizing your tax liabilities in addition to other operating expenses is equally as important as maximizing your revenues. Prudent businesses protect their hard-earned assets by engaging the services of a real estate professional to facilitate the use of a tax deferred exchanges.

Investors complete 1031 Exchanges to defer the capital gains tax on the disposition of their investment properties. There are many different types of exchanges that are available to investors, each with their own specific requirements and limitations.

The sale of a business or investment asset can create a large tax liability. A properly structured tax deferred exchange under Internal Revenue Code §1031 allows businesses and individuals to defer the recognition of capital gains and other taxes associated with the sale, as long as new assets are purchased to replace the relinquished assets. In general, most 1031 Exchanges are structured either as a real property (real estate) or personal property (fleets of cars, business equipment, artwork, etc) exchanges.

To have the benefit of a 1031 Exchange, the property (or business asset) must have been held by the client for productive use in a trade or business, or for investment purposes. The property (or business asset) must also be exchanged for like-kind replacement property that will be held for similar purposes. With few restrictions, whether an exchange involves a parcel of real property (residential or commercial), an airplane, a broadcast spectrum, or a fleet of cars, exchanges allow businesses and individuals the flexibility to sell and buy property with no significant changes to the terms of the sale and purchase agreements. By utilizing a 1031 Exchange, clients are able to maximize their capital by deferring the taxes that would otherwise be incurred on an outright sale of their property and use the entire amount of the equity from the 1031 Exchange to acquire substantially more replacement property. Properly structured, a 1031 Exchange becomes an invaluable tax savings and wealth preservation tool.

What are the most common types of exchanges?

1. The Simultaneous Exchange
This simply refers to an exchange wherein the relinquished property and the property to be acquired have escrows that are closed simultaneously. It is extremely important in this circumstance that each closing is contingent upon the other closing to maintain the integrity of the exchange. As anyone who has ever been involved in a complex real estate transaction knows, it is difficult to predict with certainty exactly when a transaction will close. It is for this reason that the Starker Delayed Exchange has come into favor with real estate investors.
2. The Delayed Exchange
As was stated above, because of the inherent problems associated with simultaneous closings and the dangers of violating the rules of IRC 1031, more and more real estate investors are using "Starker Delayed" exchanges as the method of choice for completing tax deferred exchanges. The rules for using delayed exchanges are to be found in the amendments to the tax code that Congress wrote into the 1984 Tax Reform Act.
These rules are as follows:

1.      The exchanger has a total of 45 days from the closing of the property that is disposed of to identify up to three potential replacement properties.
2.       Or the exchanger can identify any number of properties so long as their combined fair market value does not exceed 200% of the value of the property being disposed of.
3.       The 95% exception rule, states that neither of the first two rules apply if 95% of the value of all of the properties identified are actually acquired.
4.       The exchanger has a total of 180 days from the close of the property that was relinquished (sold) to close on the replacement property. Remember that the rule is not six months, but 180 days.
When using the delayed exchange method, it is necessary to engage the services of a competent and reliable exchange intermediary. The intermediary will hold the proceeds of the relinquished property in trust for the exchanger and upon the instruction of the exchanger, acquire one or more of the named properties and assist in the closing of the replacement property.
We prefer to use an intermediary who offers a Letter of Credit backed up by the assets of a financial institution to guarantee the safety of the funds held during the course of the exchange. Please refer to the following article, Simplifying Exchanges Through The Use of An Intermediary, by Robert F. Egenolf, J.D., LL.M. Mr. Egenolf is an attorney who specializes in IRC 1031 Tax Deferred Exchanges. He has lectured and written extensively about this topic. He is also the President of Amherst Exchange Corporation, an intermediary for tax deferred exchanges.

For more information regarding a 1031 Exchange and how to properly structure your next transaction, please contact our office.
We have obtained the above information from sources believed to be reliable, but no representations of any kind - expressed or implied-are being made as to the accuracy of such information. All references to income/expenses are approximate only. Buyer should conduct an independent investigation of all pertinent property information. We bear no liability for any errors, inaccuracies or omissions.

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