1031 Exchange: A Guide to Successful Real Estate Transactions

Looking to complete a like-kind exchange? Learn more about section 1031 of the tax code and how it could save you money on capital gains.

Section 1031 of the U.S. tax code allows investors to exchange similar properties without paying capital gains tax on the profits of the sale. This rule only applies to investment properties or buildings used in the operation of a business. Like-kind properties—a phrase used to describe 1031 trades—are typically exchanged based on value, rather than type. 1031 exchanges only apply to property in the United States.

Choosing to exchange properties instead of selling and purchasing new assets has a variety of benefits. Not only are there significant tax breaks associated with a 1031 trade, but it can help investors roll their capital into more lucrative investments quickly. 1031 exchange rules and regulations are extensive. Enlisting the help of financial experts is highly recommended.

Eligible 1031 Exchange Properties

For a property to be eligible for a 1031 exchange, it must meet certain criteria outlined in Section 1031 of the Internal Revenue Code in the United States. Here are the key requirements:

1. Like-Kind Property. The property you exchange must be of like-kind to the property you acquire. In the context of real estate, the term “like-kind” is broadly interpreted, and it generally means any real property used for business, trade, or investment purposes in the United States.
2. Business or Investment Use. Both the relinquished property (property you’re selling) and the replacement property (property you’re acquiring) must be held for business use or for investment. Personal-use properties, such as a primary residence or a second home, usually do not qualify.
3. Equal or Greater Value. The value of the replacement property must be equal to or greater than the value of the relinquished property. If you receive cash or other non-like-kind property (known as “boot”) as part of the exchange, you may be liable for capital gains tax on that portion.
4. Qualified Intermediary. To facilitate the exchange, you are required to use a qualified intermediary (QI). The QI is a neutral third party who holds the funds from the sale of the relinquished property and uses them to acquire the replacement property.
5. Timeline. There are strict timelines that must be adhered to:
   • Identification Period: Within 45 days of selling the relinquished property, you must identify potential replacement properties.
   • Exchange Period: The entire exchange, including the acquisition of the replacement property, must be completed within 180 days.

It’s important to note that while real estate is the most common type of property involved in 1031 exchanges, the concept of like-kind exchange can also apply to other types of property, such as certain types of personal property or business assets. However, the rules and requirements may vary, and it’s advisable to consult with tax professionals or legal advisors to ensure compliance with the regulations and to understand the implications for your specific situation

What are the tax benefits of a 1031 exchange?

Investors must roll all of their capital into the new property to benefit from the tax break. If the single-family rental is worth $1,000,000 and an investor exchanges it for an apartment building worth $2,000,000, he or she would defer paying capital gains tax on the $1,000,000 earned from the sale of the rental house. If the new property is worth less than the first, investors may face paying for “boot.”

What is boot in a 1031 exchange?

Boot is ineligible property resulting from an exchange. For example, if an investor sells the single-family rental for $1,000,000, earning $200,000 in profit, but trades it for a property worth $900,000, the investor will incur capital gains tax on the $100,000 not rolled into the new property. Although it is not mandatory to avoid boot, paying tax on any income gained from a sale may outweigh the benefits of the tax breaks associated with a 1031 exchange.

Identifying a Replacement Property

Investors must submit in writing an unambiguous description of the replacement property for it to be considered in the exchange. Identifications typically include a building address or a detailed, legal description of the property.

What are the types of 1031 exchanges?

Three primary categories of property exchanges fall under the purview of section 1031 of the tax code. The nature of the trade is determined by the conditions of the sale, the duration of the exchange, and the timing of property acquisition. Typically, a qualified intermediary is enlisted to oversee and authorize the exchange, safeguarding the properties until the completion of the transaction.

1. Delayed Exchange: In a delayed exchange, investors can finalize the process within 180 days, hence the name. Following the sale of one property, identification of a replacement property must occur within 45 days, and the closure of the exchange must transpire within 180 days to qualify for the associated tax break.
2. Built-to-Suit Exchanges: Properties that are either newly constructed or in need of renovation can serve as replacement properties within the same 180-day timeframe. It’s crucial, however, that any construction or renovation work is completed within the 180 days. If not, the value of those assets cannot be included in the exchange. Therefore, built-to-suit exchanges are practical when an investor is confident that the necessary work will be finished on schedule. Failure to meet this deadline may result in the imposition of capital gains tax on profits, undermining the purpose of a like-kind exchange.
3. Reverse Exchange: In a reverse exchange, an investor acquires a replacement property before finalizing the sale of the original property. A qualified intermediary is essential to approve and secure the replacement property until the initial unit is sold. The same 180-day timeline requirement applies in this scenario.

What are the 1031 exchange rules?

Since the onset of the 20th century, amendments to section 1031 of the tax code have influenced how investors can leverage the law. The subsequent regulations impact both purchasers and vendors engaged in 1031 exchanges.

The 180-day guideline applies to various tax benefits accessible to investors, including those involved in a 1031 exchange. To qualify for the tax break, property owners must finalize the exchange within 180 days of selling the initial property. Furthermore, the replacement property must be selected within 45 days of the sale of the original property to meet exchange eligibility.

The depreciation regulation mandates that investors recapture any depreciation from their original property in the replacement unit. This requirement arises only if the depreciated amount exceeds the value of the first property. In certain instances, profits may incur income taxes, potentially offsetting the advantages of executing a 1031 exchange.

The three-property rule empowers investors to identify three potential replacement properties, irrespective of their value. As with all exchanges, the investor has a 45-day window to complete the selection process and an additional 180 days to acquire one of the three options.

The 200% rule permits investors to identify an unlimited number of properties within 45 days. However, the cumulative value of all potential properties must not exceed 200% of the value of the sold property.

The 95% rule enables investors to identify an unlimited number of replacement properties, but they must acquire 95% of the total value of those chosen properties. This rule is seldom utilized, as it necessitates the purchase of almost all the identified properties to qualify for the exchange.

The law states that investors must complete a 1031 exchange using property that is ‘substantially the same’ as the item he or she identified at the 45-day mark. The property cannot differ in nature or character from what was originally selected. This delicate process makes it important to work with 1031 exchange experts or financial advisors when completing a deal.

Have questions specific to your situation? Brighton Jones has tax and real estate professionals integrated into our Personal CFO approach to wealth management.

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The information contained in this document is provided for informational purposes only and should not be construed as individualized advice. For individualized advice, please consult with your adviser.