What is the "Like-Kind" or 1031 Exchange Real Estate Swap?



What Is A Section 1031 Exchange, And How Does It Affect Tax Liabilities


Real estate has always been a great way to build wealth. When you buy a property by putting a relatively small amount of money down and obtaining a mortgage, you're leveraging your investment; in other words, you're getting an asset worth significantly more than the money you've invested as a down payment.


If your home increases in value, you build equity based on the total price of the asset. Another significant benefit of real estate is the tax breaks. When you live in the home, the interest you pay on your mortgage is tax-deductible if you itemize your return. Thanks to the Taxpayer Relief Act of 1997, another tax break comes in reduced capital gains taxes. For example, when you sell your home, the first $250,000 gains are free from capital gains taxes ($500,000 for married couples). These tax advantages make owning a home a wise investment for many of us and allow us to build wealth relatively tax-free when investing in a residence.


If you're a commercial real estate investor, there is another rule you can also use to defer capital gains on your investment property to build wealth. It's called the 1031 Exchange Rule, and it has many moving parts. Real estate investors must understand the law before attempting to use it, and it can be complicated to follow. An exchange can only be made with like-kind properties. In addition, there are tax implications and time frames that must be strictly followed, or it may be problematic.


If you're considering using a 1031 Exchange or want to learn more, we're going to help you gain an understanding of this investment benefit in this post.


What Exactly is a Section 1031 Exchange

In simple terms, a 1031 exchange (also known as a like-kind exchange) is a swap of one investment property for another. Although most swaps are taxable as sales, if you meet the requirements of 1031, you'll pay no tax or a limited tax due at the time of the exchange.


In effect, you are changing the “form” of your investment in the eyes of the IRS without cashing out or recognizing a capital gain. This allows you to grow your investment tax-deferred. Because there are no limits as to how many times or how frequently you can use 1031, you can continue to roll your capital gains from one investment property to another, and another, and another.


Even though you may be profiting from each swap, you avoid paying any taxes until you finally cash out many years (or even decades) later. If it works as planned, you'll pay a single tax at the current long-term capital gains rate (currently 15 or 20% depending on your income).


Most exchanges must meet the criteria known as “like-kind.” However, this phrase doesn't necessarily mean what the name implies. For example, you can exchange an apartment building for raw land or a ranch for a strip mall. The rules are surprisingly liberal. You can also exchange one business for another. However, there are “traps” of which you need to be aware.


The 1031 rules are for investment and business property, although they can apply for a former primary residence under certain conditions. It's also possible to use the 1031 Exchange for swapping a vacation home, but this loophole has been made much narrower in recent years.


When You Might Want a 1031 Exchange

As a real estate investor, there are several reasons that you may consider using a 1031 exchange. These include:


• You're looking for a property with better prospects for an ROI, or you might want to diversify your assets.

• If you own investment real estate, you might be looking for a managed property rather than managing it yourself.

• You may want to consolidate your holding for estate planning purposes, for example, dividing a single property into several assets.

• To reset the depreciation clock (more below.)


The main benefit of a 1031 exchange over simply selling one property and buying another is the tax deferral. By deferring capital gains taxes using a 1031 exchange, you're freeing more capital for investment in a replacement property.


Bear in mind that 1031 might require a higher minimum investment and a longer holding time. 1031exchange transactions can be complex and should be handled by professionals.


Understanding Depreciation and Why It's Important


It's essential to understand the concept of depreciation to gain a proper understanding of the benefits of a 1031 exchange.


Depreciation is the percentage of the cost of an investment property written off every year, recognizing the effects of wear and tear. When you sell a property, capital gains taxes are calculated based on the property's net-adjusted basis, which combines the property's original purchase price plus capital improvements, minus depreciation.


If your property sells for more than its depreciated value, you may need to “recapture” the depreciation. That means the amount of depreciation is included as taxable income when you sell.


Since the size of depreciation increases with time, you might want to consider a 1031 exchange to avoid the significant increase in taxable income that recapture would cause. Depreciation recapture is a factor to account for when considering a 1031 exchange.


The Replacement Property: Timing and Rules

The classic exchange involves a simple swap of one property for another between two people. However, it's long odds to find someone with the exact property you want, who wants the exact property you have. As a result, the majority of exchanges are delayed, three-party exchanges.


In a delayed exchange, you need a qualified intermediary or middleman. He or she will hold the cash after you sell your property and then uses it to purchase the replacement property for you. This is a three-party exchange that is classified and treated as a swap. Here are two essential timing rules you need to follow in a delayed exchange.


The 45-day Rule

This rule relates to the designation of a replacement property. Once a sale occurs, the intermediary receives the cash. Within 45 days of the sale, you must designate the replacement property in writing to the intermediary, specifying the property you wish to acquire. The IRS rule states that you can select three properties as long as you eventually close on one of them.


The 180-day Rule

The second timing rule you need to be aware of in a delayed exchange relates to closing the replacement property. You must close on the new property within 180 days of the sale of your original property.


One crucial fact to be aware of is that these periods run concurrently. That means the clock starts when you close on the sale of your original property. For example, if you designate a replacement property exactly 45 days after you close, you'll have just 135 days left to close on the replacement.


Tax Implications

While there are plenty of benefits to 1031 exchanges, it's essential to understand potential pitfalls if the transaction isn't handled correctly. For example, you may have cash left over after your intermediary acquires the replacement property. If so, they will pay it to you at the end of the 180 days. This cash is known as “boot,” will be taxed as the partial sales proceeds from the sale of your property, typically as a capital gain.


One way people can get into trouble with this type of transaction is by failing to consider loans. You must consider any mortgage loans or other debts on the replacement property. If you don't receive cash back, but your liability is reduced, that is treated as income to you – just like cash.


For example, if you were carrying a mortgage of $1 million on your old property, but the mortgage on the replacement property you receive in the exchange is only $900,000, you will have a $100,000 gain. This is classified as “boot,” and it will be taxed.


The Bottom Line...

While we've just touched on the highlights of 1031 exchanges, the fact is, 1031 is an intelligent tax-deferral strategy that real estate investors can use to build real wealth. The bottom line is that while using a 1031exchange strategy is a savvy business move, there are many complex moving parts that not only require you to understand the rules. It is important to enlist professional help, even if you're a seasoned real estate investor.

Our team of experts are here to help. Contact us with any questions you may have.


Additional Resources:


https://www.investopedia.com/financial-edge/0110/10-things-to-know-about-1031-exchanges.aspx#:~:text=In%20real%20estate%2C%20a%201031,%2C%20investors%2C%20and%20soccer%20moms.


https://www.cwscapital.com/what-is-a-1031-exchange/


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