1031 Exchange – What It Is & What Are the Rules?

Author Charlie Cutler Read bio
Tags: 1031 exchange
Date: April 19, 2024

A 1031 exchange is a way for investors to swap one investment property for another while delaying the payment of capital gains taxes. This concept, named after Section 1031 of the Internal Revenue Code, is commonly discussed by real estate agents, investors, and others in the field. Some even use it as a verb, like saying, “Let’s 1031 that building for another.”

There are specific requirements and rules for a 1031 exchange that investors need to know. The exchange must involve properties of similar kind, and there are restrictions on using this strategy with vacation homes. Additionally, the Internal Revenue Service (IRS) sets certain time limits and tax rules that could pose challenges.

If you’re thinking about a 1031 exchange or just want to learn more, it’s important to understand these regulations.

What Is a 1031 Exchange?

A 1031 exchange is a financial strategy used by real estate investors to swap one investment property for another, allowing them to postpone paying capital gains taxes on the property they sell.

Named for Section 1031 of the Internal Revenue Code, this tactic is popular among real estate professionals and investors. It requires that the properties exchanged be of similar nature, and it comes with specific IRS rules, including time limits and restrictions on certain types of properties. Understanding these rules is crucial for anyone considering this type of exchange.

1031 Exchange Timelines and Rules

Traditionally, a 1031 exchange would involve a straightforward swap of one property for another between two individuals. However, it’s often challenging to find someone who has the precise property you want and who desires yours in return. As a result, most 1031 exchanges are delayed, involve three parties, or are Starker exchanges (named after the tax case that established their legality).

In a delayed exchange, a qualified intermediary (a middleman) is necessary. This intermediary holds onto the cash from the sale of your property and then uses it to purchase the replacement property on your behalf. This type of exchange is officially treated as a swap.

There are also crucial timing rules to follow in a delayed exchange.

45-Day Rule

The initial timing rule in a 1031 exchange concerns identifying a replacement property. After selling your original property, the intermediary receives the proceeds. It’s crucial that you do not receive this cash directly, as it would invalidate the 1031 treatment. Within 45 days from selling your property, you must formally notify the intermediary in writing of the property or properties you intend to acquire as replacements.

The IRS permits the designation of up to three properties, provided you finalize the purchase of at least one. You can even specify more than three properties if they meet certain valuation criteria.

180-Day Rule

The second crucial timing aspect of a delayed 1031 exchange pertains to the purchase completion. You must finalize the acquisition of the new property within 180 days following the sale of your previous property.

It’s important to note that the 45-day identification period and the 180-day closing period overlap. This means the countdown starts from the day you close the sale of your old property. For instance, if you take the full 45 days to identify your replacement property, you will then have only 135 days remaining to complete the purchase of it.

How Does a 1031 Tax-deferred Exchange Work?

A 1031 tax-deferred exchange, named after Section 1031 of the U.S. Internal Revenue Code, allows investors to postpone paying capital gains taxes on an investment property when it is sold, as long as another similar property is purchased with the profit gained by the sale. Here’s a step-by-step explanation of how it works:

  1. Sell Your Investment Property: Begin by selling your current investment property. The proceeds from this sale will need to be used to purchase another investment property to qualify for tax-deferral under the 1031 exchange rules.
  2. Use a Qualified Intermediary: To ensure the process complies with tax laws, you must use a qualified intermediary (QI). The QI holds the proceeds from the sale of your property to avoid you taking possession of the cash which could lead to tax liabilities.
  3. Identify Replacement Property: Once your property is sold, you have 45 days to identify potential replacement properties. The details of these properties must be formally documented and submitted to the intermediary. The IRS allows you to identify up to three properties as potential purchases, or more if they adhere to certain valuation guidelines.
  4. Complete the Purchase: After identifying the replacement property, you have up to 180 days from the sale of the original property to complete the purchase of the new property through the intermediary.

By following these steps, the capital gains taxes on the sale are deferred, essentially providing you with an interest-free loan from the government on the taxes you would have paid while your investment continues to grow.

How Does a Reverse Exchange Work?

A reverse exchange, also known as a forward exchange, is a type of 1031 exchange where you acquire a new property before selling the old one. This can be particularly useful when you find the perfect replacement property but haven’t yet sold your current property. Here’s how a reverse exchange typically works:

  1. Engaging a Qualified Intermediary (QI): Just like in a standard 1031 exchange, a Qualified Intermediary plays a crucial role in a reverse exchange. The QI helps facilitate the transaction by holding title to one of the properties involved in the exchange.
  2. Acquiring the Replacement Property: In a reverse exchange, the QI will initially hold the title to the new (replacement) property, effectively “parking” it until the old (relinquished) property can be sold. This is done because IRS regulations do not allow the taxpayer to hold title to both the relinquished and replacement properties at the same time during the exchange period.
  3. Financing and Holding: Financing a reverse exchange can be complex since you need to secure funding for the new property while still owning the old one. Additionally, the QI holding the new property may complicate obtaining a mortgage. Investors often need to have substantial liquid assets or use creative financing solutions.
  4. Selling the Relinquished Property: You must sell your old property within a specific timeframe to complete the exchange. The standard deadline is within 180 days after the replacement property has been acquired by the QI.
  5. Completing the Exchange: Once the relinquished property is sold, the proceeds are used to finalize the purchase of the replacement property from the QI. This completes the exchange process, and the QI transfers the title of the replacement property to you.
  6. Reporting: Similar to traditional exchanges, reverse exchanges must be reported to the IRS, detailing the properties and finances involved.

Reverse exchanges are more complex and generally more costly than standard 1031 exchanges due to the additional complications of “parking” a property with a QI and the potential financing challenges. However, they offer a valuable option for investors who want to secure a new property before selling their existing one.

man exchanging cards

1031 Exchange Tax Implications

In a 1031 exchange, you might end up with leftover cash after the intermediary secures the replacement property. This leftover cash, known as boot, will be given to you at the end of the 180-day period and is taxable as capital gains, similar to partial proceeds from the sale of your property.

A common pitfall in these exchanges is not properly accounting for debt. It’s crucial to consider any mortgages or other debts on both the relinquished property and the replacement property. If you do not receive cash back but your overall debt decreases, this reduction in liability is treated as financial gain, similar to receiving cash.

For example, if you had a $1 million mortgage on your old property and the mortgage on your new property is only $900,000, you effectively have a $100,000 gain. This gain is considered boot and will be subject to taxes.

How to Report 1031 Exchanges to the IRS?

To comply with IRS requirements, you must report any 1031 exchange by submitting Form 8824 along with your tax return for the year in which the exchange took place.

Form 8824 asks you to detail the properties involved in the exchange, including descriptions, the dates on which they were identified and when the transfers were completed, and any relationships you may have with the other parties involved in the exchange. Additionally, you will need to report the value of the exchanged properties, the adjusted basis of the relinquished property, and any liabilities that were either assumed or relieved during the transaction.

It is critical to fill out this form accurately and thoroughly. Errors or omissions can lead to substantial tax liabilities and penalties from the IRS if it’s determined that the rules of the exchange were not properly followed.

1031 Exchange Example

Sarah owns an apartment building currently valued at $2 million, which is twice the amount she paid seven years ago. She becomes interested in a larger condominium in a higher rent district, priced at $2.5 million, after her real estate broker brings it to her attention.

Using a 1031 exchange, Kim could sell her apartment building and use the proceeds to purchase the more expensive condominium. This strategy allows her to defer paying capital gains and depreciation recapture taxes on the sale of her apartment. As a result, she can invest more capital into the new property without the immediate tax burden.

In Conclusion

A 1031 exchange offers real estate investors a tax-deferred method to accumulate wealth. However, due to its complexity and numerous detailed requirements, even experienced investors should consider seeking professional guidance to navigate the rules and ensure a successful exchange.