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What
is a 1031 Exchange?
In the summer of 1990, the I.R.S. finally came out with
the long awaited rules on Deferred Exchanges. Section
1.1031 of the Internal Revenue Code laid out in detail
the procedure for turning a sale and purchase type transaction
into an exchange. These new rules allowed owners of
certain types of like-kind Real and Personal property
to sell their property and buy other like-kind property
without paying the Capital Gains Tax. The like-kind
provision for Real property is quite broad, and includes
Land, Rental, and Business property. Any of which, can
be exchanged for the other.
The like-kind provision for Personal property is more restrictive. This
type of property must be in productive use in a business (depreciable
property), and can only be exchanged for the same type of property. As
an example a business aircraft for a business aircraft (a fixed wing
airplane for a helicopter will work), or a commercial truck for a
commercial truck, etc.
The rule also required that the "Exchanger" use a safe harbor to hold
the proceeds while the exchange was in progress, and spelled out what
those safe harbors were. The only practical safe harbor for most
"Exchangers" is a "Qualified Intermediary."
What qualifies for a 1031 Exchange?
QUALIFIED PROPERTIES
The classification of properties exchanged determines
if the property qualifies for Section 1031 treatment.
A. The IRS's 4 classifications of Real Estate:
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1. |
Property
held for personal use. (Personal Property) |
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2. |
Property
held primarily for sale. (Dealer Property) |
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3. |
Property
held for productive use in a trade or business.
(Business Property) |
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4. |
Property
held for investment. (Investment Property) |
The last two qualify for Section 1031 tax deferral, the first two do
not. Both the property received and the property sold must be of
"Like-Kind". It is your use of the property that determines its
classification. What the other party does with the property does not
affect your tax status.
B. Like-Kind Property
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1. |
Like-kind refers to your use of the property and
not to its grade or quality. |
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2. |
"1031"
property may be mixed as to type and still be
like-kind. As an example, you may exchange land
for a duplex, or a commercial building for a retail
store, etc. |
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3. |
Property held outside the USA and its territories
does not qualify for exchange with property held
within the USA. |
C. Partnership Interests
Your interest in a partnership cannot be traded for
an interest in another partnership.
Exception: The partnership as an entity can exchange
real estate it owns for other like-kind real estate.
D. Transfer Between Spouses
There are no income tax consequences in entering into financial
transactions between spouses. In addition, most transfers incident to a
divorce are tax free. However, transactions with a former spouse are
normally subject to tax unless they qualify for non-recognition under
the provisions of Section 1031.
E. Sale/Lease Back As An Exchange
A lessee's interest in a lease with a term of 30 years or longer in real
property is considered like-kind to other real property. In addition,
property which is subject to a lease can be, even if the lease is for a
term of 30 years or longer, the subject of a tax free exchange. However
the receipt of prepaid lease payments in an exchange for a 30-year or
longer lease is taxed as ordinary income and will not qualify for
tax-free exchange treatment.
F. Business Assets
The personal property assets of one business can be exchanged for
like-kind assets of another business and will be held as a like-kind
exchange under Section 1031. The real property is treated the same as
any other exchange. The like-kind requirements for personal property are
much more stringent than for real property (e.g., a truck cannot be
exchanged for a car, nor can a barge be exchanged for a cargo ship).
G. Vacation Homes & Properties
This type of property does not qualify if it is used
solely for personal use. It may qualify if rented, and
must pass a use test each year.
H. Recent Changes to IRS 1.1031 rules
The principal residence exclusion of gain ($250,000 single, $500,000
married couples filed jointly) is disallowed after a like-kind exchange
if you received the residence within five years before the sale.
FOR MORE DETAILS ON 1031 EXCHANGES, PLEASE CONSULT YOU
ACCOUNTANT AND CHECK OUT: www.1031help.com
We do not provide tax or legal advice. Investors should always seek the
advice of their tax and/or legal advisors regarding their specific
situation. |
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