1031 Exchanges with Disregarded Entities

Consider the following 1031 exchange example we recently ran into with a client: The client and his wife were looking to sell a 4-plex held by an LLC that they both owned together (100%). They wanted to use those funds in a 1031 exchange to purchase another apartment, but with a different LLC name that they would also both own 100%. Would this be allowed under 1031 exchange rules since more than one person owns the entity?

Disregarded Entities

The same taxpayer that owned the old Relinquished Property must receive the Replacement Property to complete the 1031 exchange. The question brings up the issue of disregarded entities.

The IRS will only allow an LLC that is a disregarded entity (owned solely by a husband AND wife in a community property state, e.g., California) to be titled on the replacement property. Rev. Proc. 2002-69. In this case a multi-member LLC owned by you and your wife sold the Relinquished Property. It is not a disregarded entity.

The old LLC owned the Relinquished Property, and the old LLC should be the owner of the new Replacement Property.  You can do this by changing the name of the old LLC by filing a name-change amendment with the Secretary of State; or by having the old LLC be the sole owner of the new LLC (which would also have to be a disregarded entity).

Please check out this article on 1031 exchanges, LLCs, and married couples for more information.

• Start Your 1031 Exchange: If you have questions about 1031 exchanges and disregarded entities, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2016 Copyright Jeffrey R. Peterson All Rights Reserved

A Complex 1031 Exchange Scenario

Working as a qualified intermediary for so many years, I've heard many complex scenarios and examples from clients. Here's one such scenario from a recent client.

The Scenario

The client had a building they were selling for $400k. Their existing first mortgage balance was $200k. They had a working line of credit with a balance of roughly $100k on it that was titled under a different LLC. However, the line of credit was tied (cross collateralized) to about four different properties (including the for sale property in question).

Here's the question: "Can this taxpayer pay off the 1st mortgage and this LLC and then use the rest of the funds to buy a new  replacement property?

The Short Answer

Ultimately, this is not a good plan of action for a 1031 exchange.

The idea behind IRC Section 1031 is to move ALL of your equity into a new like-kind Replacement Property so that there is a continuation of investment. To the extent that you divert your equity, you may end up triggering some gains.

In this situation, you should always talk to your CPA or accountant about getting the bank to release the 2nd loan with little or no pay-off, and then later pull some equity out of the Replacement Property in a subsequent transaction (after the 1031 is complete) by again cross collateralizing the property.

For more on this, read our previous article on Post-Exchange Refinancing. 

3 General Rules

There are three general rules of thumb to quickly see if you will defer all of the recognition of gain:

1. Typically you will acquire replacement property that is “up or equal” in Value (price);

2. You will roll over all of your Equity (net proceeds) from the relinquished property into your replacement property.

3. And to the extent that you were relieved of liabilities and debt, such as mortgages on your old relinquished property, the debt relief is offset by (1) new liabilities or mortgages taken on in conjunction with your purchase of the replacement property; OR (2) by investing additional cash in the replacement property equal to the amount of liabilities and debts that were discharged.

• Start Your Exchange: If you have questions about 1031 exchanges, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2016 Copyright Jeffrey R. Peterson All Rights Reserved

Home Foreclosures and 1031 Exchanges

If you're about to be foreclosed on a property and you’re going to lose it involuntarily, one opportunity that you may not have even thought of is to do a 1031 exchange (or debt exchange).

Gain on the Sale

Your gain on the sale is computed by the difference between your adjusted basis in the property and the amount of debt relief that you're going to experience when you give back that property to the lender; NOT the amount of cash that you may or may not receive.

So if your basis is far below the debt, you may have MOB “mortgage over basis,” and that will result in taxable gain to you if you just give back the property to the lender. So even though you don't have any net sales proceeds of cash coming to you, you may still want to structure it as a 1031 exchange so you can defer the gain on the difference between your basis and a debt relief.

How do you do that? You get your qualified intermediary to prepare all the documents that would normally be executed in a 1031 exchange. You give notice to the lender (the buyer), and then you go forward and acquire a new replacement property within the deadlines.  

• Start Your 1031 Exchange: If you have questions about 1031 exchanges and foreclosures, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2016 Copyright Jeffrey R. Peterson All Rights Reserved

Can I do a 1031 on a Building that my Business Leases?

Many people want to expand their business and they want to buy a like-kind replacement property that they will eventually rent to their own business. Is this allowed under section 1031?

Business 1031 Example

Let’s look at an example. Say you have taxpayer A forming an LLC, and the LLC buys the replacement property. Then the LLC enters into a lease with the taxpayer’s separate operating company - the business that the taxpayer operates for their livelihood. It might be a metal fabricating business or some kind of light manufacturing business. There are many tax and legal advantages of owning your real property in a separate entity and then renting it to your operating company; because the rental payments may be received as passive income, and you are protecting yourself from predatory creditors by compartmentalizing your assets into different business entities.

That is a great way for taxpayers to grow and expand their businesses to effectively be their own landlord. Since they're holding the replacement property for investment or business purposes for rent to their own business, that qualifies under Section 1031. In fact I'd argue that was what Congress intended when they thought up section 1031 - to stimulate economic growth and to allow people to move Capital to the most advantageous investment, in this case the new location of their own company and hopefully allow them to expand their net worth.

• Start Your 1031 Exchange: If you have questions about 1031s and business leases, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2016 Copyright Jeffrey R. Peterson All Rights Reserved

What Lawyers Need to Know about 1031 Exchanges

Lawyers have a special relationship with their clients and want to provide the best possible service. But when it comes to facilitating a 1031 exchange if you've been the agent of the taxpayer or employee of the taxpayer during the last two years, you are excluded from acting as their qualified intermediary.

The Role of a Qualified Intermediary

A qualified intermediary is supposed to be a neutral third party who is beholden to the taxpayer, beyond their sway. I generally recommend that you don't use your colleague from across the hallway that's in the same law firm to act as an intermediary. Instead, for a relatively nominal fee, you can use a professional third-party intermediary that is engaged exclusively in the business of facilitating exchanges, and that has a proven track record; who carries specific errors and omissions insurance and fidelity bonds, and also has the expertise and experience to help support you in facilitating your client’s successful transition from the relinquished property to the replacement property.

In other words, lawyers get to wear one hat in these 1031 transactions - to be the lawyer. while the qualified intermediary wears the hat of the facilitator or accommodator to provide separate and distinct services in the facilitation of your client’s successful 1031 exchange.

• Start Your 1031 Exchange: If you have questions about what lawyers need to know about 1031 exchanges, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2016 Copyright Jeffrey R. Peterson All Rights Reserved