1031 Exchange Frequently Asked Questions
No, an LLC member interest, where the LLC elects to be treated as a partnership, or a partnership interest are considered personal property and cannot be exchanged. IRC Section 1031(a)(2)(D) specifically prohibits the exchange of partnership interests. However, both an LLC or partnership (or any other entity for that matter) can do a 1031 exchange on the entity level, meaning the entire partnership relinquishes a property and the entire partnerships stays intact and purchases a replacement property. If you are in a situation where some LLC members or some partners would like to exchange, but others don’t, consult with your tax or legal advisors and discuss the issues involved with strategies and the timing of performing what are known as “drop and swap” or a “swap and drop” alternatives. In a community property states only, a husband and wife who are the sole members of a two member LLC may be considered a single member disregarded LLC for Federal tax purposes – check with your tax or legal advisors to discuss this more thoroughly.
A tenant-in-common ownership program, often referred to as a “TIC”, is where an exchanger acquires fractional ownership in a larger commercial property with up to 35 other co-owners. There are many benefits to TIC ownership including professional property management, geographic diversification, appreciation, predictable cash flow, depreciation and flexibility without management problems. A properly structured TIC program should not be a joint venture or a partnership.
The central issue is whether or not the investor has the intent to “hold for investment”, not just the period of time. There is no “safe” holding period to automatically qualify as being held for investment. Time is only one of the factors the IRS can look at to determine the exchanger’s intent for both the relinquished and replacement properties. Every investor has unique facts and circumstances and it is up to them, and their tax or legal advisors, to be able to substantiate that their primary intent was to hold property for investment purposes.
Any property held for productive use of trade or business or for investment can be exchanged for any other property held for productive use in trade or business or for investment – these properties are considered “like-kind” to one another. Examples of like-kind investment real estate include: exchanging unimproved for improved property; a fee interest for a leasehold with 30 or more years left; exchanging vacant raw land for a commercial building; or exchanging a single family rental for a small apartment complex. The rules for exchanges of personal property are significantly more narrow and class or asset code specific than for real property.
The improvement exchange, sometimes referred to as a construction or build-to-suit exchange, allows an investor, through the use of a qualified intermediary, to make improvements on the replacement property using exchange equity. The improvement exchange can often result in a better or more suitable investment property that those readily available on the open market. The ability to refurbish, add capital improvements, or build from the ground up, while using tax deferred dollars, can create tremendous investment opportunities.
Boot is any non like-kind property received by the exchanger and is taxable to the extent there is capital gain. “Cash boot” is the receipt of exchange proceeds by the exchanger. “Mortgage boot”, also sometimes referred to as “debt relief,” is the exchanger having less debt on the replacement property or properties that they had on their relinquished property. Cash or mortgage boot can be offset by the exchanger adding outside cash to the replacement property purchase. If the exchanger wants to receive cash boot, it must be received either at the closing of the relinquished property or after they have purchased all property they are entitled to under the exchange agreement- which is generally the end of the exchange period. Read the full article, What is Boot?
If a taxpayer intends to perform a 1031 exchange which is fully tax deferred, they must meet two simple requirements:
- Reinvest the entire net equity (net proceeds) in one or more replacement properties;
– and – - Acquire one or more replacement properties with the same or a greater amount of debt.
An alternative approach for complete tax deferral is acquiring property of equal or greater value and spending the entire net equity in the acquisition. One exception to the second requirement is that a taxpayer can offset a reduction in debt by adding new cash to the replacement property closing in an amount that is the same or exceeds the reduction in debt
Yes, an exchanger can do a partial exchange and not reinvest all of the net equity or take on debt in the replacement property – the property being acquired – that less than the debt in the relinquished property – the property being disposed of. The exchanger must recognize as income the exchange proceeds received and/or the reduction of debt to the extent there is a capital gain.
There are three steps involved in determining the capital gain taxes that are owed. The first is to determine the net adjusted basis – this is calculated by starting with the original purchase price, adding the capital improvements and subtracting the depreciation taken. The second step is calculating the actual capital gain by taking today’s sales price, subtracting the net adjusted basis and then subtracting the cost of sale to arrive at the capital gain. The third, and final step, is determining the capital gain owed. Under this formula, the recaptured depreciation is all taxed at 25% and the remaining economic gain is taxed at the maximum capital gain tax rate which is currently 15%. Finally, the state tax rate, when applicable, is also applied to the capital gain. All three of these amounts, the depreciation recapture, the federal amount and the state tax, are added to arrive at the total capital gain tax due.
Although an exchanger can identify more than one replacement property, the maximum number of properties that can be identified is limited to one of the follow three rules: 1) Three replacement properties without regard to their fair market value (the “3 Property Rule”) 2) The value does not exceed 200% of the aggregate fair value of all relinquished properties (the “200 Rule”) and 3) Any number of replacement properties without regard to the combined fair market value, as long as the properties acquired amount to at least 95% of the fair market value of all identified properties (the “95% Rule”).