A 'like kind' exchange can let you defer your tax obligations
The Washington Post - Washington, D.C.
By Benny L. Kass, Published: March 8, 2014
If you've been avoiding selling an investment property because of the capital gains implications, the IRS's Starker exchange may be your solution.
People who stand to make a large profit on selling a rental property who are in a high income tax bracket could be hit with not only tens of thousands of dollars in capital gains taxes but also a new 3.8 percent Medicare surtax.
But the IRS Starker exchange (Section 1031 of the code) could allow you to defer any and all tax.
The IRS has issued proposed regulations that make it clear that the surtax does not have to be paid if you do an exchange. And although these regulations have not yet been finalized, the IRS has stated that taxpayers may rely on them at least until the final regulations are implemented.
Although often called a "tax-free" exchange, a Starker will not relieve you from the ultimate obligation to pay the capital gains tax. It will, however, allow you to defer paying that tax until you sell your last investment property. At that time, any gain that you have deferred will be built into the new property.
A Starker exchange, also referred to as a "like kind" exchange, works this way: I own investment property A and you own property B (also investment). Both are of equal value. You convey B to me, and on that same day I convey property A to you. If there is a written agreement between us that this is to be a 1031 exchange, neither of us will have to immediately pay any capital gains tax on any profit we have made.
However, such a transaction is rarely possible. The logistics of finding the replacement property to be exchanged simultaneously with the relinquished property is very difficult, if not impossible to coordinate.
Many years ago, a man named T.J. Starker sold property in Oregon in a "land exchange agreement" but did not receive any money for the sale. Instead, the seller - a couple of years later - transferred replacement property to Starker. The IRS considered this a taxable sale, but the 9th Circuit Court of Appeals held that this was a deferred exchange, which was permitted under Section 1031 of the tax code. In other words, the exchange did not have to take place simultaneously.
There are two kinds of Starker or deferred exchanges: a forward exchange, in which you sell the relinquished property and obtain the replacement property within the time limits spelled out in Section 1031; and a reverse exchange, in which you obtain title to the replacement property first and then sell the relinquished property.
With some important exceptions, the rules apply equally whether the exchange is forward or reverse.
Section 1031 permits a delay or non-recognition of gain only if these conditions are met:
First, the relinquished property or property transferred and the exchange or replacement property must be "property held for productive use in trade, in business or for investment," according to the code. Neither property in this exchange can be your principal residence, unless you have abandoned it as your personal house. Your vacation home would also not qualify as investment property, unless you actually start to rent it out more or less full time.
Second, there must be an exchange; the IRS wants to ensure that a transaction that is called an exchange is not really a sale and a subsequent purchase.
Third, the replacement property must be of "like kind." The courts have given a very broad definition to this concept. As a general rule, all real estate is considered "like kind" with all other real estate. Thus, a condominium unit can be swapped for an office building, a single-family home for raw land, or a farm for commercial or industrial property.
Here is a general overview of the requirements:
Congress did not like the fact that the Starker opinion had no time limitations on when the exchange could take place. Thus, the law now requires that the taxpayer identify the replacement property or properties) no later than 45 days after the relinquished property has been sold.
Perhaps the most important requirement of a successful 1031 exchange is that the taxpayer can not receive or control even one penny of the net sales proceeds from the relinquished property. All such proceeds must be held in escrow by a neutral party and go directly into the purchase of the replacement property. Generally, an intermediary or escrow agent is involved in the transaction.
To make absolutely sure that the taxpayer does not have control or access to these funds during this interim period, the IRS requires that this agent cannot be the taxpayer or a related party. The holder of the escrow account can be an attorney or a broker engaged primarily to facilitate the exchange.
The replacement property must be obtained no later than 180 days after the relinquished property is transferred or the due date of the taxpayer's income tax return for the year in which the transfer is made. If, for example, you transferred the relinquished property on Dec. 1, 2013, your tax return is due on April 15, 2014. That is only 149 days. You either have to obtain the replacement property by that date or get extensions from the IRS so that you can use the full 180 days.
The rules are extremely complex. You must seek both legal and tax accounting advice before you enter into any like-kind exchange transaction - whether forward or reverse.
Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.