What Is 1031 Exchange?

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“You can earn lots of money by through investing in real property. However, real estate investors know that it comes with the exact costs of most other investment forms: taxes. However, savvy investors can defer their capital gains tax payments using the 1031 exchange unless Congress changes its rules, which have existed for over a century.”

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What Is 1031 Exchange?

Investors may defer tax payments through the 1031 exchange by following a series of strict rules outlined in a section of the Internal Revenue Code that defines them. To fully benefit from a 1031 exchange, you must know what is 1031 exchange is and the following.


In Simple Terms, What Is A 1031 Exchange?

Real estate investors can defer tax liability on the sale of investment property by participating in a 1031 Exchange approved by the IRS. Investing in another like-kind property of equal or more excellent value can allow investors to defer capital gains tax on the proceeds of recently sold investment properties by reinvesting the proceeds. There is a possibility of deferring capital gains tax in Section 1031 of the U.S. Internal Revenue Code.

It has existed for almost 100 years, and we can use it yearly by thousands of real estate investors. Often referred to as “like-kind exchanges,” 1031 exchanges are used by many investors. Investors can reposition investment real estate to meet their objectives by deferring taxes resulting from the sale while retaining all of their equity to continue using it.


Getting a Basic Understanding of 1031 Exchanges

A valid 1031 Exchange requires a thorough understanding of the IRS rules, including qualifying properties, exchange timelines, and eligibility requirements.

There are three criteria for qualifying for a 1031 exchange:

  1. It must be at least as valuable as the investment property sold to qualify as a replacement investment property.
  2. Investors must use the proceeds to buy the replacement property upon selling the relinquished property.
  3. “Like-kind” property includes both the relinquished and replacement property.

IRS rules also need specific deadlines for exchanges. It includes 45 days for identifying potential replacement properties and 180 days for acquiring them.


Benefits of 1031 exchanges

It is possible to use a 1031 Exchange to sell investment real estate only. 1031 Exchanges are not available to other types of investments. Their primary benefit is deferral of taxes that result from the sale of investment property. This is a highly generous section of the tax code that is not available to other types of investments.


Benefits of besides tax deferral.

There are many benefits of 1031 Exchanges besides tax deferral. Here are some of them:

  • A deferral of taxes, including federal and state capital gains taxes, net investment income taxes, and depreciation recapture taxes
  • Make the most of your cash flow potential and investment dollars.
  • Beneficiaries would not be subject to inheritance or estate taxes.
  • Diversification reduces risk
  • Active management of non-managed properties is not required.
  • The ability to access a variety of property types and markets


What Are The Different Types Of 1031 Exchanges?

There was a 1031 exchange program in 1921 but for the first 63 years. It only permitted what is famous as a “Simultaneous Exchange. In which one property would be exchanged for another. In this structure, two owners wanted the other’s property, then agreed to trade and transferred ownership directly.

As a result of the Starker Case, the IRS permitted “Delayed Exchanges” in the 1980s. In a delayed Exchange, the exchanger can sell their investment property to any buyer and exchange the resulting sales proceeds for like-kind replacement property if specific rules apply.


Delayed exchanges are much more flexible than simultaneous

Therefore, delayed exchanges are much more flexible than simultaneous exchanges. Delayed Exchanges are the most common format for exchanging properties in today’s market. Investors have 180 days to purchase replacement properties after relinquishing their originals.

During a reverse exchange, the replacement property goes up for sale first. Buyers must sell their current property before purchasing a new investment property to take advantage of this strategy. Improvement Exchanges, Simultaneous Exchanges, and Partial Exchanges are other options.


Is There A Rule For 1031 Exchanges?

It is possible to implement various strategies when it comes to 1031 Exchanges. However, the IRS rules aren’t flexible. If you do not adhere to IRS rules, you may be liable for the entire tax liability. But if you fail to follow them, or if you fail to follow IRS rules, you may be liable for a part of the tax liability. In allowing 1031 Exchanges, the IRS hopes to facilitate continuous investment in real estate for business or investment.

There are two primary elements of the 1031 Exchange Rules. First, there is not an infinite timeframe for 1031 Exchanges. Second, no “economic benefit” can be received by an exchanger without paying taxes.

It entails either receiving cash compensations (i.e., sales proceeds) or reducing liabilities (i.e., mortgages and debt payoffs) without matching the liability with the replacement property or contributing additional equity, as the IRS defines as “economic benefit.”


The Main Rules of the 1031 Exchange

1031 Exchange rules should be familiar to investors considering an exchange. The following are the seven main rules:

  1. It is necessary to set up the exchange before a sale occurs.
  2. You must exchange like-kind property for the exchange.
  3. There must be a value difference between the exchange property and the one the exchange is for
  4. In the event of a capital gain or depreciation recapture, the property owner must pay capital gains and depreciation recapture taxes.
  5. Neither the taxpayer who sold the exchange property nor the taxpayer who acquired it must be the same.
  6. If the property owner wants to identify replacement properties within 45 days of the sale, they must do so within 45 days.
  7. It takes 180 days for the property owner to complete the exchange following the sale.


1031 Exchange Property Types

To determine whether a 1031 Exchange property is right for you, there are several different types. It is possible to exchange all property types for a 1031 Exchange, including residential, industrial, commercial, and other property types.


1031 Exchange Property Types


Because it is possible to exchange any type of property for a 1031 exchange, it is possible to compare their attributes and characteristics:

  • Proprietary Interests in Delaware Statutory Trusts
  • A TIC property is a property that has tenants in common.
  • Real estate under a net lease
  • Real estate is relatively simple.


Here’s How to Do a 1031 Exchange

Unless you’re a tax professional, you probably should consult with an experienced 1031 exchange expert. The rules and details are explained in IRS Publication 544, but here are some basic steps and what to expect.


Selling a property starts with identifying it.

1031 exchanges are typically only for commercial or investment properties. Personal property, such as your primary residence or vacation home, does not qualify.


Finding the right property for your needs

Whether you’re selling or buying property, it must be of “like-kind,” which means they should have similar qualities, character, or qualities, but not necessarily the same quality (more about that below). A property within the U.S. is not considered similar to one outside the U.S.


Choose a qualified intermediary.

Generally, in a 1031 exchange, no proceeds will be received, so there are no taxes to pay.

Working with a qualified intermediary, sometimes an exchange facilitator is essential to avoid prematurely receiving cash. They keep the funds in escrow for the duration of the exchange (assuming the sale and purchase do not happen simultaneously). It’s risky to lose money if the company goes bankrupt or flakes on you. You may also miss important deadlines and have to pay taxes sooner than later.


Many of the sale proceeds should go toward the new property.

If you keep some of the sale proceeds, you might have to pay some capital gains tax now if you choose not to invest them in a like-kind property.


A calendar is an excellent way to keep track of your progress.

You usually have to meet two deadlines to avoid taxation on your gain from selling your property.

Your first step after selling your property is to identify potential replacement properties. Which you must share with the seller or qualified intermediary in writing. A second requirement is to buy the new property within 180 days of selling your old home or when your tax return is due (whichever is sooner).

It’s important to remember that you cannot qualify for a 1031 exchange if you receive cash or other proceeds before the exchange is complete. Suppose you take control of the proceeds before the exchange is complete. A disqualified exchange will result, and you will be liable for tax immediately.


It is your responsibility to inform the IRS about any transactions you make

If you have properties that require describing, providing a timeline, explaining who was involved, and specifying how much was involved in money, you will probably need to file IRS Form 8824 with your tax return.


Regulations and Timelines for 1031 Exchanges

One exchange involves the exchange of property between two individuals. However, there are very slim chances of finding another individual who wants to exchange the exact property you seek.

Generally, a delayed exchange, or swap, requires a third party to hold your cash after you sell your property and buy your replacement on your behalf. Timing rules in delayed exchanges consist of two main components.


There is a 45-day rule.

As a first step, you must designate a replacement property. If you receive cash once your property sells, you will lose the 1031 treatment. You cannot receive cash. In addition, you must specify to the intermediary in writing the replacement property that you wish to acquire within 45 days of the sale of your property.

If you ever close on one of the properties, you can designate up to three. If the properties meet specific valuation criteria, you can designate more than three properties.


Observe the 180-day rule.

Another vital timing rule for a delayed exchange is that the new property must be closed within 180 days of the sale of the old property.


An exchange that reverses

In addition, it’s possible to purchase a property in the exact location as the old property and still qualify for a 1031 exchange. In this case, you need to open the 45-day window and 180-day window when you close on the replacement property.

An exchange accommodation titleholder must hold exchange accommodations during the first 45 days after the replacement property has gone up for sale, and the exchange must occur within 180 days after the replacement property purchase.


Cash and Debt Implications of the 1031 Exchange Tax

The intermediary may have leftover cash after acquiring the replacement property for you. If so, you will receive it at the end of 180 days. Generally, that cash will be taxable as a capital gain as a portion of the sales proceeds of your property.

There are many ways that people get into trouble with these transactions when they fail to consider loans. It would help if you had to consider mortgage loans or other debts you owe on your former property and any debts you owe on the new property. If you do not receive cash back, but your liability goes down, that will also count the same way as cash.

If the old property had a $1 million mortgage, but the new property you receive is only $900,000, you will have a $100,000 gain that is also taxable as a boot.


1031 Exchange Example: What Does it Look Like?

A condominium with a more considerable lot fetching higher rents for $2.5 million is on the market in an area where Kim owns an apartment building worth $2 million, double what she paid seven years ago.

Kim could, in theory, use a 1031 exchange to sell her apartment building and use the proceeds to pay for her new larger residence without worrying about immediate tax liability. She has more money to invest in the new property by deferring capital gains and depreciation recapture taxes.



While the 1031 exchange may seem like an easy way to build wealth, it involves many complex moving parts that need understanding the rules and professional advice for experienced investors.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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