Is it Possible to Borrow Too Much Money in a 1031 Exchange?

In a 1031 exchange, the taxpayer needs to redeploy (or reinvest) all of their proceeds or exchange funds into the replacement property. However, if they have two large of a mortgage or deed of trust on their replacement property, the net result may be that they are receiving funds back at the replacement property closing. Here are some tips to keep in mind if you find yourself in this situation.

Avoiding Taxable Boot

If the taxpayer receives back money from the closing of the replacement property, these funds may be treated as taxable boot by the IRS. In order to avoid receiving access exchange funds back at the closing it may be necessary to lower the amount of debt being taken out in conjunction with the purchase of the property.

Consult Your CPA

It's always a prudent practice to have your CPA or tax advisor review your settlement or closing statement before completing the purchase of your replacement property to make sure everything is in order and the 1031 exchange goes off without issue.

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

Defer the tax. Maximize your gain.

© 2021 Copyright Jeffrey R. Peterson All Rights Reserved

How Does a Drop-and-Swap 1031 Land Exchange Work?

In a 1031 land exchange the property may be owned by an entity. Within that entity, some of the owners or partners may be inclined to do a 1031 exchange, while other owners or partners are uncertain or they just want to take their cash and run - pay their taxes and be done. What's the best way to proceed in this type of situation?

Reconfiguring Ownership

In these situations, people often think about reconfiguring the ownership of the old relinquished property before their land sells. The idea is if we can keep the old entity comprised now of only the exchange-minded partners or owners and have the entity that owned the property do the exchange, we have a stronger, more defensible exchange.

Tenant-in-Common Interest

The way we can do that is we can redeem or distribute out to the non-exchanging members or partners their tenant in common interest in the underlying land so they become in effect co-sellers who received their portion of the sales proceeds separate and apart from the entity that's going to do the 1031 exchange. There are many variations of the drop-and-swap but this is the one that I like best for limited liability companies and partnerships that own land and want to do 1031 exchanges.

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

Defer the tax. Maximize your gain.

© 2021 Copyright Jeffrey R. Peterson All Rights Reserved

How Do You Determine Property Ownership in a 1031 Exchange?

When you do a 1031 exchange the taxpayer that owns the old relinquished property has to receive the new replacement property. That begs the question: “who owns the relinquished property?”

Who Owns the Relinquished Property?

Often, people aren't sure exactly who the official owner of the relinquished property is. They may have a vague recollection that they bought it when they were not married and then later became married and they're not sure if their new spouse is in title on the property.

Additionally, they may have done some estate planning and created an irrevocable trust and they're not sure if this asset got put into the trust. And they may be in certain corporations or partnership and may or may not have contributed this property officially into the business entity.

Finding the Owner

Step one in a 1031 exchange is to determine who is the taxpayer that's going to do this exchange. That's the taxpayer that has officially owned and held the property for investment or business purposes. There's two ways to investigate this. First we can pull a copy of the last vesting deed for the subject property and see who in the public records is shown as the owner of the property.

Next, we can work with the taxpayer and the accounting firm to look at their previous tax returns to see how this property has been dealt with on their tax returns. For example, Susan and Martha may own the property as tenants-in-common on their public record on their deed, but Susan and Martha may have also filed partnership tax returns showing the asset as being in their business entity in their partnership. So we need to delve into this to determine who is the taxpayer that should do the exchange.

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

Defer the tax. Maximize your gain.

© 2021 Copyright Jeffrey R. Peterson All Rights Reserved

Essential Actions to Take After a 1031 Reverse Exchange

After a reverse exchange is completed and a replacement property that was parked by the intermediary has been conveyed to the taxpayer, the business may not be done. There may still be some administrative tidying up that needs to be done.

Change of Address

For example, the LLC that parked and held title to the replacement property may have been assigned to the taxpayer, but the records with the Secretary of State may still reflect the intermediary’s address as the business address of the LLC and as the registered agent. One administrative step after the reverse exchange is done is to file a new annual report with the Secretary of State reflecting the correct address and who is the new registered agent of the LLC.

If the address where the county tax statements are being sent to is showing as the intermediary’s address, the local county may continue to send the tax bills to the intermediary’s address rather than to the taxpayer. So another item to tidy up is to file or notify the local tax assessor where you want your tax statements and tax bills to be sent to in the future.

Notify the IRS

It may also be prudent to contact the IRS and notify them that the ownership of the LLC has substantially changed and request a new EIN number for the LLC.

These are little administrative items that are prudent to take immediately after the reverse exchange has been wrapped up. It's important not to delay too long because otherwise correspondence and important communication may be routed to the wrong address and the taxpayer may not receive that information for some time.

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

Defer the tax. Maximize your gain.

© 2021 Copyright Jeffrey R. Peterson All Rights Reserved

Remember to 1031 Exchange into Replacement Property of Equal or Greater Value

1031 Exchange Question: should you consider exchanging into one or more properties so you have continued investment into properties of equal or more VALUE?

Getting the Most Tax-Efficient Outcome

To get the most tax-efficient outcome, you may want to take on some more debt and buy more than you ordinarily would. One trick is to go into investments with non-recourse debt (that you are not personally liable for) to get to the requisite value, but without the personal liability.

3 Rules of Thumb for 1031 Exchanges

There are three general rules of thumb (also known as the napkin test) 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); {*net of sales commissions and customary transactional expenses}

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.

You can have a partial tax deferral if you miss these general benchmarks. A 1031 exchange is not an all or nothing deal, and you can complete a partially tax deferred exchange; but you will probably recognize gain to the extent that you buy down in value.

Be sure to check with your CPA about these general rules of thumb, to make sure they apply to your specific situation.

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

Defer the tax. Maximize your gain.

© 2021 Copyright Jeffrey R. Peterson All Rights Reserved