1031 Exchanges
What Is a Tax-deferred Exchange?
A tax-deferred exchange is simply a method by which a property
owner trades one property for another without having to pay any
federal income taxes on the transaction. In an ordinary sale transaction,
the property owner is taxed on any gain realized by the sale of
the property. But in an exchange, the tax on the transaction is
deferred until some time in the future, usually when the newly acquired
property is sold.
These exchanges are sometimes called tax-free exchanges because
the exchange transaction itself is not taxed.
Tax-deferred exchanges are authorized by Section 1031 of the Internal
Revenue Code. The requirements of Section 1031 and other sections
must be carefully met, but when an exchange is done properly, the
tax on the transaction may be deferred.
In a exchange, a property owner simply disposes of one property
and acquires another property. The transaction must be structured
in such a way that it is, in fact, an exchange of one property for
another, rather than the taxable sale of one property and the purchase
of another.
Today, a sale and a reinvestment in a replacement property are converted
into an exchange by means of an Exchange Agreement and the services
of a qualified intermediary –a fourth party who helps to ensure
that the exchange is structured properly.
The Parties and Properties in an Exchange
There are four parties involved in a typical tax-deferred
exchange: the taxpayer, the seller, the buyer, and the intermediary.
The taxpayer (also called the exchanger): the taxpayer has property
and would like to exchange it for new property.
The seller: the seller owns the property that the taxpayer wants
to acquire in the exchange.
The buyer: the buyer is the person with cash who wants to acquire
the taxpayer’s property.
The intermediary: the intermediary plays a role in almost all
exchanges today. It is usually a corporation or limited liability
company. It may also be called a Qualified Intermediary or QI. It
neither begins nor ends the transaction with any property. It buys
and then resells the properties in return for a fee. The intermediary
cannot be related to the taxpayer.
Types of Exchanges:
A. The Two-Party Exchange:
Two party exchanges are rare, since in the typical Section 1031
transaction, the seller of the replacement property is not the
buyer of the taxpayer’s property. As the name implies, only
two parties are involved and they exchange their properties. Both
steps of the transaction occur simultaneously.
B. The Simultaneous Exchange with Intermediary:
Most exchanges today employ the services of an intermediary–a
straw party whose sole purpose in the transaction is to facilitate
the exchange.
In a simultaneous exchange with an intermediary, title to the
relinquished property is transferred directly to the buyer. The
buyer pays cash to the intermediary. The intermediary pays cash
to the seller who transfers title to the replacement property
directly to the taxpayer. The taxpayer thus avoids receiving any
cash during the transaction, which would be immediately taxable.
C. The Deferred Exchange with Intermediary:
Sometimes, at the time when the relinquished property is transferred
to the buyer, the taxpayer does not yet know what property he
or she wants to acquire. When that is the case, a deferred exchange
is necessary.
The structure of the deferred exchange with intermediary is essentially
the same as the simultaneous exchange with intermediary, except
that, because the replacement property is not known at the time
the relinquished property is transferred to the buyer, the two
legs of the exchange take place at different times.
The taxpayer has 45 days to identify the property he or she wants
as the replacement property. The transfer of the replacement property
must still close within 180 days of the transfer of the relinquished
property.
The Title Agents Role
At US Title of Florida, we will work hand-in-hand with
your tax planning professional and 1031 Intermediary to effectuate
a smooth transaction and facilitate the tax-deferred exchange.
For more information, please feel free to contact Gregory S. Gefen,
Esq. At 561-988-0088.
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