A 1031 exchange allows taxpayers owning real and personal property in a trade, business or investment to defer the federal and state capital gain and depreciation recapture taxes when selling and replacing with like-kind real and personal property. The tax deferral postpones the tax payment until the replacement property is sold and the taxpayer cashes out. Should the taxpayer elect to initiate another 1031 exchange, the tax deferral continues. The tax does not go away,but rather is postponed given the replacement property has a purchase price equal to or greater than the relinquished or old property. Should the taxpayer replace less than the relinquished net selling price, then a tax is triggered on the difference, known as a partial exchange. The premise for the 1031 exchange is that the taxpayer’s economic position has not changed from the sale to the purchase; no benefit is received such as cash or reduction in debt. There are many rules to follow in a 1031 exchange, including the use of an independent, third party known as a Qualified Intermediary (QI), to accommodate the 1031 exchange.
Andy Gustafson
1031 Exchange Change in Administration’s 2015 Budget
A change to the 1031 exchange is proposed in the Administration’s Fiscal Year 2015 Revenue Proposals to be effective for all like-kind exchanges completed after December 31, 2014. On page 102 of the 297 page budget proposal, the modification to the 1031 exchange is recognized as a loophole closer.
Qualified Intent in a 1031 Exchange
A 1031 exchange is utilized by taxpayers who are selling real and personal property held in a trade, business or for investment. The approved Internal Revenue Service strategy allows the taxpayer to defer or postpone payment of the federal and state capital gain and depreciation recapture tax. The tax does not go away, but rather is due when the replacement property sells and the taxpayer cashes out. The taxpayer can initiate as many 1031 exchanges as makes sense, but eventually, the tax is due.
1031 Exchange Eliminated in Tax Reform Draft
Yesterday, elimination of Internal Revenue Code Section 1031 exchange was proposed by House Ways and Means Committee Chairman Dave Camp as a component of a nearly 1,000 page Discussion Draft for Comprehensive Tax Reform. If approved, the extensive changes would constitute a major overhaul of the complex U.S. tax system. Though the draft has not been proposed as a bill, it is destined for tax reform discussion most likely to be undertaken by Congress, possibly in 2015. Former Senator Max Baucus introduced a tax reform proposal last year that also includes the repeal of the 1031 exchange. Needless to say, the 1031 exchange regulation will be part of the intense discussion.
Fracking and 1031 Exchange
Mineral interests such as oil and gas are eligible for a 1031 exchange deferring federal and state capital gain taxes given the transactions satisfy the Internal Revenue Code Section 1031 requirements. Smart owners selling fracking mineral interests of natural gas deposits should consider whether a 1031 exchange makes sense. The tax that would otherwise be paid is deferrable into any type of real property, including investment and commercial properties. The 1031 exchange represents an indefinite interest free loan or additional working capital for use towards acquiring replacement property.
Four Key 1031 Exchange Rules
When taxpayers ask what they should know about a 1031 exchange, I suggest reading this brief article to attempt to cover four key target areas that match up with the characteristics of their transaction. Every 1031 exchange is different though they are all either a forward or reverse exchange, meaning that the old property is sold before the new or in a reverse, the new is acquired before the old is sold with both types of exchanges completed within 180 calendar days. They also share the goal of deferring the capital gain though partial 1031 exchanges may be the desired outcome when not all the exchange proceeds or debt retired is replaced. When you think all bases are covered, there are the exceptions to the rules that are reviewed given the taxpayer’s 1031 exchange specifics.