A 1031 exchange is a strategy used to defer or eliminate the payment of capital gains taxes arising from selling a real estate property used for investment or for "productive use" in a business or trade. It is named as such because "1031" is the IRS code section 1031. "Exchange" refers to the core of the strategy in which one investment property is sold (relinquished) and a new investment property is purchased (acquired) and intended to replace the sold property.

*Review of Capital Gains*

A capital gain is known as the profit from selling an investment. It is the difference between the cost basis of purchasing the investment and the amount for which it was sold.

Capital Gain Tax Deferral Through a 1031 Exchange

A 1031 Exchange would enable the investor to avoid paying tax on the capital gains realized from the sale of an investment or business property. A third party intermediary, an entity not related to either party, would retain the capital gains (profit) from the sale until a replacement investment property is found and purchased by the investor.

The capital gains realized from the sale of the investment property will be applied to the purchase of the newly acquired property, thus avoiding the payment of capital gains taxes. Very specific requirements must be met and only certain properties qualify for a 1031 exchange.

Determining If Your Property Qualifies For a 1031 Exchange

The detailed process of a 1031 is somewhat complex and it's always advised to seek out a tax professionals' guidance throughout this process. Any errors will disqualify the investment property exchange and the investor would be required to pay the capital gains tax.

Summary of 1031 Property Qualifications

Certain qualifications of the existing property and the replacement property in question must be met. These qualifications include:

1. Type of Property

2. Intended Use of Property

3. Like-Kind Property

4. Specific Requirements

Type of Property

Two types of Real Estate Properties qualify: Business Properties and Investment Properties that are owned for the purpose generating income. This may be revenue from a business or income generated from the investment itself (ex. Rental income).

*Key Point: Personal Property Does not Qualify

For example, rental properties or a Plumbing business would generally qualify for a 1031 exchange.

This is a very specific requirement and excludes any personal property. While most homeowners consider their home an investment, its primary purpose is a place of residence, not to generate investment income.

Summary of Properties Excluded

1. Inventory

2. Dealer Inventory (Flipping is excluded)

3. Personal Property held for sale

4. stocks, bonds and notes

5. Interests in Partnerships

6. Vacation homes

7. Certificates of Trust

Intended Purpose

The intention of current property and the replacement property must be for a business or investment purposes.

* This may sound obvious, but there are some situations where intent will come into play. For instance, an investor wants to buy a rental home in Florida as part of a 1031 exchange. The investor currently owns apartment rentals and is looking to sell and replace them with the vacation home.

Intended purpose will determine if this situation qualifies for a 1031. For instance, the vacation home will qualify if the intent is to collect monthly rent from tenants. However, if the investor intends to reside in the vacation home, even if only in the winter, it does not qualify for a 1031 exchange.

*Key Point: Personal Property AND Vacation Homes are Excluded from a 1031 Exchange.

Like-Kind

The properties to be exchanged must be of "Like-Kind". According to the IRS, the investment properties must be of similar character and nature. However, the grade and quality of the new property does not have to be similar.

For instance, an investor may have own a landscaping business and wants to sell it in exchange for a residential home that he or she wants to fix up and sell for a profit. Would this qualify for a 1031 exchange? The answer is No.

Purchasing homes with the intent of flipping' them does not qualify for 1031 exchanges because they are considered "Inventory". Inventory is not eligible for a 1031 exchange.

However, a shopping center can be exchanged for an apartment complex, or raw land intended for business can be exchanged for a department store.

Summary of Specific Requirements and Safe Harbor Provisions

1. Both Properties are held for investment or use in a trade or business.

2. A Replacement property must be identified within 45 days of the sale of the relinquished property.

3. Replacement property must be purchased within 180 days of the sale of the relinquished property.

4. A qualified intermediary must be designated to hold the proceeds of from the sale of the relinquished property until the closing date of the replacement property.

5. To remain tax free, capital gains received from the original sale must be utilized for the purchase of the replacement property.

In closing, the 1031 Exchange is an excellent strategy to protect business profits, yet it's a complicated endeavor that requires the assistance of professional guidance and planning.

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