1031 Exchanges: How to Avoid Capital Gains on the Sale of an Investment Property

Do you have an investment property that you would like to sell, but defer the capital gains taxes? If so, then you need to consider a 1031 exchange:

A 1031 exchange, otherwise known as a "tax deferred exchange" is a strategy and method for selling one investment property and then proceeding with an acquisition of another property, all of which must happen within a specific time frame as set by the rules of the Internal Revenue Service. It is because you will be "exchanging" and not simply buying and selling a real estate investment property that allows the taxpayer(s) to qualify for a deferred gain treatment. Sales of real estate are taxable with the IRS and 1031 exchanges are not.

NOTICE: Due to the fact that exchanging a property represents an IRS-recognized approach to the deferral of capital gain taxes, it is very important for you to understand the rules involved. It is within the Section 1031 of the Internal Revenue Code that you can find the appropriate tax code necessary for a successful exchange.

Why consider a 1031 Exchange?

If you are a real estate investor, or have real estate investment properties, you should consider an exchange when you expect to acquire a replacement "like kind" property subsequent to the sale of your existing investment property. A simple sale of the property would necessitate the payment of a capital gain tax to our friends at the IRS, which can range from 20% to 40% depending on the federal and state tax rates. By selling your property using a 1031 exchange, you are leveraging your purchaing power by keeping all of your funds intact.

To qualify as a 1031 exchange, you must adhere to these two rules:

1) The total purchase price of the replacement "like kind" property must be equal to, or greater than the total net sales price of the relinquished, real estate, property.

2) All the equity received from the sale, of the relinquished real estate property, must be used to acquire the replacement, "like kind" property.

Should either of these rules (above) be violated, then then a qualified tax attorney will have to help you determine the tax liability accrued to the person executing the Exchange. In any case which the replacement property purchase price is less, there will be a tax responsibility incurred. To the extent that not all equity is moved from the relinquished to the replacement property, there will be tax. This is not to say that the (1031) exchange will not qualify for these reasons. Keep in mind, partial exchanges do in fact, qualify for a partial tax-deferral treatment. This simply means that the amount, of the difference (if any), will be taxed as "non-like-kind" real estate property.

THE 1031 Exchange Rule

A property transaction can only qualify for a deferred tax exchange if it follows the 1031 exchange rule laid down in the US tax code and the treasury regulations.

The foundation of 1031 exchange rule by the IRS is that the properties involved in the transaction must be "Like Kind" and Both properties must be held for a productive purpose in business or trade, as an investment.

The 1031 exchange rule also lays down a guideline for the proceeds of the sale. The proceeds from the sale must go through the hands of a Qualified Intermediary and not through your hands or the hands of one of your agents or else all the proceeds will become taxable. The entire cash or monetary proceeds from the original sale has to be reinvested towards acquiring the new real estate property. Any cash proceeds retained from the sale are taxable.

The second fundamental rule is that the 1031 exchange requires that the replacement property must be subject to an equal or greater level of debt than the property sold or as a result the buyer will be forced to pay the tax on the amount of decrease. If not he/she will have to put in additional cash to offset the low debt amount on the newly acquired property.

1031 Exchange Rules and Timelines:

There are 2 timelines that anybody going for a 1031 property exchange:

The Identification Period: This is the crucial period during which the party selling a property must identify other replacement properties that he proposes or wishes to buy. It is not uncommon to select more than one property. This period is scheduled as exactly 45 days from the day of selling the relinquished property. This 45 days timeline must be followed under any and all circumstances and is not extendable in any way, even if the 45th day falls on a Saturday, Sunday or legal US holiday.

The Exchange Period: This is the period within which a person who has sold the relinquished property must receive the replacement property. It is referred to as the Exchange Period under 1031 exchange (IRS) rule. This period ends at exactly 180 days after the date on which the person transfers the property relinquished or the due date for the person's tax return for that taxable year in which the transfer of the relinquished property has occurred, whichever situation is earlier. Now according to the 1031 exchange (IRS) rule, the 180 day timeline has to be adhered to under all circumstances and is not extendable in any situation, even if the 180th day falls on a Saturday, Sunday or legal (US) holiday.