I am a licensed real estate salesperson and I am representing a seller who is selling a three family investment property. She is interested in reinvesting the proceeds from the sale in a 1031 Exchange. What is a 1031 Exchange? Will the seller be able to avoid paying capital gains tax by participating in a 1031 Exchange?
The term “1031 Exchange” refers to Section 1031 of the Internal Revenue Code (the “Code”). A 1031 Exchange affords the seller of an investment property (the “Original Property”) the opportunity to defer paying capital gains on the Original Property if the seller reinvests the proceeds of the sale in the purchase of a “Like Kind” replacement property (the “Replacement Property”).
It is important to note that the seller does not avoid paying capital gains on the sale of the Original Property. Rather the capital gains taxes on the sale of the Original Property are deferred until such time as the seller is unable to complete a 1031 Exchange, at which time the capital gains will be payable.
To assist REBNY members in further understanding 1031 Exchanges, we have provided answers to the following frequently asked questions:
Q1. Are there any significant time frames that a seller must keep in mind when participating in a 1031 Exchange?
A1. Yes, there are two significant time frames that a seller must comply with when executing a 1031 Exchange. First, the seller must identify the Replacement Property within 45 days of the closing date of the Original Property. This 45 day window is known as the “Identification Period.” Second, the seller must generally complete the acquisition of the Replacement Property within 180 days from the closing date of the Original Property. This is known as the “Exchange Period.” The Identification Period and the Exchange Period begin on the same day and run concurrently.
Q2. What is “Like Kind” Property?
A2. Like Kind Property is defined broadly under the Code. Any real property held either as an investment or for use in trade or business is considered to be of “Like Kind” with any other real property which is also held as an investment or for use in trade or business. For example, a condominium unit would be considered “Like Kind” with a house provided both properties are used as an investment or for use in trade or business. Real property held primarily for personal use does not qualify as “Like Kind” property. Also, property in the United States is not considered “Like Kind” with property outside of the United States.
Q3. Is it possible to execute a partial deferment of capital gains taxes rather than a full deferment of capital gains taxes?
A3: Yes, a seller is not required to invest the full sales proceeds from the Original Property in the Replacement Property. Rather, the portion of the proceeds from the sale of the Original Property that is not reinvested in the Replacement Property will not qualify for the deferment of capital gains taxes and will be taxed at the normal tax rate.
Q4: Is it possible to purchase more than one Replacement Property?
A4: Yes, a seller may exchange the Original Property into (or out of) as many Replacement Properties as possible within the 180 day Exchange Period. However, the maximum possible deferment of capital gains taxes is capped at the amount of the sale proceeds of the Original Property.
Q5: What is a Qualified Intermediary (“QI”) and what role does a QI serve in the 1031 Exchange process?
A5: A QI, sometimes known as a “facilitator,” is a third party hired by the seller to hold the proceeds from the sale of the Original Property so that the seller never takes actual or constructive possession of the proceeds. A QI is necessary because, as a requirement for receiving a deferment of capital gains, the Code forbids the seller from ever taking possession of the proceeds from the sale of the Original Property. Once the seller has identified the Replacement Property, the QI will use the proceeds of the sale being held by the QI in order to complete the purchase of the Replacement Property on behalf of the seller.
Important Tip: Because the seller must comply with very specific rules in order to utilize a 1031 Exchange, an accountant or attorney should always be consulted in connection with such transactions.
|Neil B. Garfinkel,
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP