1 welcome tax deferred 1031 real property exchanges
TRANSCRIPT
3
Course Goal
Recognize and evaluate when a 1031 tax-deferred exchangecould be advantageous
Explain the tax saving benefits
Work with the client and a team of experts to structure the transaction
4
Objectives
Gain an understanding of how the rules governing 1031 tax-deferred real property exchanges are applied and how transactions are put together
Explain the tax deferral benefits
of a 1031 exchange
5
Objectives
Recognize and evaluate situations in which a 1031 tax deferred exchange could be to the client’s advantage
Involve and work with intermediaries and other experts to structure the transaction
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When……
Business reasons should always be the driving factor
When the potential tax liability outweighs both taxes and costs
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Real Estate Professional’s Role . .
Help the client think through the pros and cons
Identify exchangeable properties
Interface with the team of professional advisors
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Basic Concept . . .
Continue an investment without adverse tax consequences
Solution to the “tax-locked property” dilemma
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Basic Concept . . .V
alu
e o
f R
eal
Est
ate
Ho
ldi n
gs
Time
Purchase
Exchange
Purchase
Exchange
Sale
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Eligibility . . .
Property must be held for investment or productive use in trade or business
- AND -
Exchanged for like-kind property
14
Business Objectives . . .
Diversify or consolidate
Business needs
Financial strategy Estate planning
Change of lifestyle Avoid cost recapture
Relocation (depreciation)
15
Advantages . . .
Capital gains tax deferred
Heirs receive a stepped-up basis and tax on accumulated capital gain is forgiven
Tax-locked property is freed up
Money available for reinvestment instead of taxes
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Disadvantages . . .
Future tax rates could be higher
Carryover of basis to replacement property
Complex and expensive transactions
Losses cannot be recognized
Proceeds must be reinvested in real estate
Time limits must be strictly adhered to
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Four Basic Rules . . .
1. Property must be held for investment
or productive use in trade or business
2. Like kind property must be exchanged for like kind
3. Replacement properties must be identified within 45 days
4. Exchange must be completed within 180 days or tax due date
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Rule 1 . . . Held for investment or productive use in trade or business
Personal residences cannot be exchanged
Classification:
relinquished property when transferred
replacement property when received
If owner occupies a unit as a personal residence, the rental portion can be an exchange, personal use portion receives
capital gain tax treatment
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Rule 1 . . . Held for investment or productive use in trade or business
Vacation Properties. . .
Exchanges can be problematic if any personal use of it–hard to document occupancy
Considered personal residence if owner occupied more than (greater of) 14
days, or 10% of the total days rented
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Rule 1 . . . Held for investment or productive use in trade or business
Dealer property specifically excluded for
1031 exchange
Dealer property: primarily for sale in
ordinary course of business
Real estate brokers/agents are not
automatically dealers
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Qualified property determined by owner’s intent . . .
Not Qualified Qualified
Home
Sweet
Home Personal Residence
For
Sale Dealer Property
Keep
OutVacant Land
(1221) & Investment
Property
For
Rent
Used in Trade or Business
(1231)
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Rule 1 . . . Held for investment or productive use in trade or business
Unqualified Property . . . Personal residence
Dealer property
Stock, bonds, notes
Choses in action
Certificates of trust or beneficial interests
Securities or evidences of indebtedness
Interests in a partnership
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Rule 2 . . . Like kind exchanged for like kind
All real estate held for investment or productive use in trade or business is like-kind
Property included in exchange that is not like-kind is taxable boot
Property located outside the U. S. (50 states & DC) not like kind
Exception, U.S. Virgin Islands
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Rule 2 . . . Like kind exchanged for like kind
Real Estate Trade or Business,
Investment
$ Personal Property
Like Kind Exchange
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Rule 3 . . . 45 Days to Identify Replacement Property
Identification period starts on the day
that the title to the relinquished property
is transferred
If multiple properties relinquished, date
of first transfer starts 45-day period
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Rule 4 . . . 180 days or by tax due date to complete exchange
The replacement property must be
transferred before the EARLIER of 180
days after the date of transfer of the
relinquished property, OR the due date,
including extensions, of the tax return for
the tax year of the exchange
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Rule 4 . . . 180 days or by tax due date to complete exchange .
Count the days
180 days does not equal 6 months
*
* May file for an extension, but exchange
must be completed with 180 days.
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Foreign Taxpayers
Foreign Investment in Real Property Tax Act
of 1980 (FIRPTA)
Applies when the transferor (seller) is a non-U.S. taxpayer (individual or organization) and the property is a U.S. real property interest (USRPI).
Withholding agent (may be the real estate agent)
must withhold 10% of the amount realized (not gain)
and remit the it to the IRS within 20 days oftransaction.
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Taxpayer Identification Number (TIN)
For an individual who cannot or does not qualify to receive a Social Security number.
Non-U.S. persons must provide a TIN when they buy or sell U.S. real property.
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Boot in 1031 Exchanges . . .
Cash or unlike property received in the
exchange
Taxable gain
Fair market value is recognized
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Rule 2 . . . Like kind exchanged for like kind
Unqualified Property
Personal
residenceDealer
Property
Mortgage Relief Cash
Unqualified Property in
an Exchange
=
Taxable Boot
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Boot in 1031 Exchanges . . .
Compare the fair market value of boot
with the gain that would result from selling
the property
Taxable gain is the lesser of these two
amounts
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Boot in 1031 Exchanges . . .
Example 2.1. . .Real estate with an adjusted basis of $30,000 is exchanged for other real estate with a fair market value of $100,000, plus $35,000 boot.
Total consideration received
$135,000
Less - Adjusted basis $30,000
Total realized gain $105,000 GAIN
Total boot received $35,000
Taxable gain is the smaller of the two
$35,000
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Boot in 1031 Exchanges . . .
If either party assumes any of
debts or liabilities of the other as part
of the exchange, the amount of
liability is treated as cash boot
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Boot in 1031 Exchanges . . .
Example 2.2. . . Allen exchanged real
estate with an adjusted basis of $30,000
for other real estate with a fair market
value of $100,000. In addition, he received
$35,000 cash and the other party assumed
a mortgage of $25,000.
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Boot in 1031 Exchanges . . .
Step 1 - Total Gain Realized
FMV of like-kind property Allen received $100,000
Cash boot received $35,000
Mortgage assumed by other party $25,000
Total consideration Allen received $160,000
Less basis of property given up $30,000
Total gain realized $130,000
Step 2 - Total Boot Received
Mortgage assumed by other party$25,000
Cash received $35,000
Total boot received $60,000
Taxable gain is lesser amount . . . $60,000
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Boot in 1031 Exchanges . . .
Netting the Liabilities . . .
Mortgage on relinquished property is boot received
Mortgage assumed may be offset against this boot
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Boot in 1031 Exchanges . . .
Example 2.3 . . .Christine exchanged land with a mortgage of $10,000 for land with a mortgage of $15,000. In addition, she received cash boot of $6,000. After offsetting the mortgages, she has paid $5,000 mortgage boot, but is not allowed to deduct this boot paid from the cash boot received.
Her taxable boot received is $6,000.
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Boot in 1031 Exchanges . . .
Transaction costs reduce both recognized and realized gain on the sale side and increase basis on the purchase side
Includes: brokerage commissions and closing costs such as title policy,
escrow, and recording fees
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Boot in 1031 Exchanges . . .
Example 2.4 . . . Dave owned property with an adjusted basis of $30,000 and exchanged it for like-kind property with a fair market value of $100,000 plus $35,000 cash. He paid a $9,000 commission to his real estate broker. Dave’s taxable gain is limited to the net boot he received—$26,000.
A "loss" is not deductible.
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Boot in 1031 Exchanges . . .
Cash boot paid offsets boot received
Mortgage boot paid offsets mortgage boot received
Mortgage paid, if more than mortgage assumed, may not offset cash or unlike property
Other boot paid may be treated as the purchase price for non-like kind property received
Selling expenses may offset boot received or net mortgage relief if no cash or unlike property is received
Recognized gain may be offset by suspended losses
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Basis . . .
Cost of a property for tax
purposes
If purchased outright, basis is
the price paid for the property plus
acquisition costs
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Basis . . .
Capital improvements increase basis
Items that provide a tax benefit
decrease basis, e.g. cost
recovery (depreciation)
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Basis . . .
Time 39 Years
Property Sold
Property Purchased
Market
Value
Cost Recovery
Original Basis
Capital Gain
Cost Recovery Recapture
15% tax
25% tax
Cost recovery decreases basis; recaptured at sale,
taxed at 25%. No cost recovery on land.
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Basis . . .
Very Important . . . Basis in the relinquished property is carried over to the replacement property, regardless of the cost of either of the properties
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Increases in Basis . . .
Cash paid in to balance equities
Liabilities/debts assumed on the replacement property
Improvements to the property
Acquisition costs
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Decreases in Basis . . .
Depreciation
Cash or nonqualified property received
Debt relief on the relinquished property
Reimbursement from an insurance policy for casualty or theft loss
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Equity . . .
$400,000
Mortgage
Balance
$550,000
Equity
$50,000 selling costs
Property A$1 Million
$1,450,000 New
Mortgage*
$550,000 Equity
Property B$2 Million
Transfe
r of
Equity
* Could finance $1.5 Million and take out $50,000 cash (taxable).
Relinquished Property
Replacement Property
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Basis . . .
$500,000
adjusted basis
$450,000
deferred gain
$50,000 selling costs
Property A$1 Million
$1,550,000
substitute basis
$450,000
deferred gain
Property B$2 Million
Transfe
r of
Basis
Relinquished Property
Replacement Property
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Exchange with Installment . . .
The installment sale gross profit
(recognized gain) is reduced by
gain not recognized in the
exchange
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Exchange with Installment . . .
Example 2.5 . . . Frank owned, free and clear, an
investment property with a FMV of $100,000 and a basis
of $30,000. If he made a cash sale, he would be taxed on
$70,000. Frank decided to make a like-kind exchange for
an investment property owned by George. The FMV of
George’s property is $75,000. Frank receives George’s
property in the exchange and agrees to accept an
installment note for $25,000 to balance the equities.
Frank receives no payments of principal in the year of
sale.
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Exchange with Installment . . .
Example . . . Frank’s gross profit percentage is 100%—
the gross profit of $25,000 divided by contract price of
$25,000. Since he did not collect any payments in the
year of sale, he has no recognized gain in the year of the
exchange.
Each year following, 100% of the principal collected that
year will be recognized as taxable capital gain
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Identifying Properties . . .
No limit on the number/value of
properties to be relinquished
Limits on number/value of
replacement properties identified
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Identifying Properties . . .
Three Property Rule . . .
Maximum number of replacement properties that may be identified is three without regard to the FMV of the properties
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Identifying Properties . . .
200 Percent Rule . . .
Any number of properties if
aggregate FMV is not more than
200% of the aggregate FMV of all the
relinquished properties
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Identifying Properties . . .
95 Percent Rule . . .
Any number of properties if by end of exchange period (180 days) aggregate value of replacement property acquired is minimum 95% of aggregate FMV of all identified property.
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Incidental Property . . .
Not separate from larger item of property
Typically transferred together
Aggregate FMV is not more than 15% of FMV of the larger item of property
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Identifying Properties . . .
In Writing. . .
Delivered, mailed, or telecopied (faxed), on/before end 45-day identification period to the other person involved in the exchange
Or part of written agreement signed by all parties–includes the real estate agent
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Revoking Identification . . .
May be made at any time before
the end of the 45-day identification
period
Written document signed by
taxpayer
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Property to be Produced . . .
Property to be Produced /Built to Suit
Qualifies as replacement property
Estimated at FMV as of the date it is expected to be received or would have if construction had been completed
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Property to be Produced . . .
Additional production on replacement property after received does not qualify for like-kind exchange
Caution: exchange for services
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Holding Period . . .
The holding period of the
relinquished property for capital gain
tax treatment is carried over to the
replacement property
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Holding Period . . . Related Parties
Minimum two-year holding period . . .
If related parties involved in exchange – relinquished or replacement property
Additional reporting – Form 8824 for two more years
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Related Parties . . .
Family members (siblings, spouse, ancestors, and lineal descendants) Corporate relationships Partnerships Trusts Estates Organizational relationships
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Holding Period . . . Residence Received in Exchange
Minimum five-year ownership period . . .
Property received in exchange and converted to personal residence must be held 5 years in order to qualify for $250,000 exclusion of gain on sale of personal residence.
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State Laws . . .
Examine for both the state of
the relinquished property and
replacement property
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Documenting Intent to Exchange . . .
Listing Agreement . . . 1031
exchange
contingency if dependent on completion
of a tax-deferred exchange
Exchange Agreement . . .
Document
relationship between taxpayer &
safe
harbor
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Documenting Intent to Exchange . . .
Sales Contract . . .notice of assignment of rights if a
qualified intermediary involved
Purchase Agreement . . . 1031 exchange contingency
establishes intent
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Documenting Intent to Exchange . . .
Escrow Instructions . . direct how the proceeds should be received and disbursed
These documents . . . not required to be included with
filing, should be in place to prove intent
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Reporting the Exchange . . .
IRS Forms . . .
1099-S Proceeds From Real Estate Transactions
Form 8824 Like-Kind Exchanges
Form 4797 Sales of Business Property
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Types of Exchanges . . .
Simultaneous Exchange . . .
On the agreed day, the parties meet at the closing table to swap deeds for the properties
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Types of Exchanges . . .
Deferred “Starker” Exchange
T.J. Starker v. United States . . . Exchanges do not have to be simultaneous to qualify
Landmark 1979 Federal Court case
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Types of Exchanges . . .
Deferred “Starker”: Relinquished property transferred before
replacement property acquired
Reverse “Starker”: Replacement property acquired before
relinquished property transferred
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Types of Exchanges . . .
Actual receipt . . . cash proceeds or property are in the taxpayer’s possession
Constructive receipt . . . cash proceeds or property can be
drawn or are in taxpayer’s control
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Types of Exchanges . . .
Deferred “Starker” Exchanges . . .
Key to successful transaction – avoiding actual or constructive
receipt
Actual or constructive receipt by an agent is actual or constructive receipt by the taxpayer
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Types of Exchanges . . .
Qualified Exchange Accommodation Arrangement (QEAA)
Qualified Exchange Accommodations Titleholder (QEAT) takes and holds title to the replacement property
“Parks” title with QEAT until replacement property identified & exchange
completed
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Types of Exchanges . . .
Reverse Exchange . . .
Taxpayer must complete
agreement with QEAT within 5
days of accommodator acquiring
replacement property
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Reverse Exchange Safe-Harbor Guidelines . . .
Complete within 180-days or the property held by the QEAT is deeded to the taxpayer
Identify relinquished property within 45 days
Intermediary can hold title to replacement or relinquished property
Qualified Exchange Accommodations Agreement (QEAA) completed within 5 days
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Types of Exchanges . . .
Reverse Exchange . . .
Replacement property held in a QEAA
may not be owned by the taxpayer within
the 180-day period preceding the date of
transfer of the property to the Exchange
Accommodation Titleholder.
Rev. Proc. 2004-51
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Types of Exchanges . . .
Delayed Closing or Deferred Exchange?
Don’t confuse
Delayed closing: relinquished property "sale" does not close until an agreed date
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Types of Exchanges . . .
Edward(exchanger)
Susan(seller)
Central Court
Silver City
Example 2.6: Two Way Exchange
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Types of Exchanges . . .
Three Way Exchange. . .
Solves the dilemma of a two-way swap
Why? Other owner seldom wants the offered property, but would accept another one, or prefers to sell the property and take the cash proceeds
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Types of Exchanges . . .
Edward(exchanger)
Susan(seller)
Example 2.7Three Individual Transfers
Bob(buyer)
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Types of Exchanges . . .
Edward(exchanger)
Susan(seller)
Example 2.8 Exchange with Purchaser
Bob(buyer)
1
2
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Types of Exchanges . . .
Edward(exchanger)
Susan(seller)
Example 2.9Exchange with Seller
Bob(buyer)
2.1.
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Types of Exchanges . . .
Edward(exchanger)
Susan(seller)
Example 2.10Escrow Holder as Accommodator
Bob(buyer)
Escrow
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Types of Exchanges . . .
Edward(exchanger)
Susan(seller)
Bob(buyer)
Intermediary
Example 2.11Exchange with an
Intermediary
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Tenants in Common . . .
Enables small investor ownership participation in premium commercial & investment property
Like-kind property for 1031 exchange
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Tenants in Common . . .
What it is not . . . a joint venture, partnership, or limited partnership
What it is . . . each investor owns an undivided, fractional, interest
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Tenants in Common . . .
Advantages . . .
Avoid involvement in day-to-management
Investment in high quality properties
Comply quickly with 45-day identification time limit
Exchange a specific amount of value
Upgrade and diversity a portfolio
92
Tenants in Common . . .
Advantages . . .
Sponsors (specialized firms)
research properties, package
investments, and monitor
performance
Large, institutional-grade
properties
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Tenants in Common . . .
Caution . . .
SEC regulations bar a commission or referral fee unless the real estate professional is a licensed security dealer
Agent may be compensated for counseling services
Can be paid from funds held by the QI, not the sponsor
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Four Safe Harbors . . .
Purpose . . . avoid actual or constructive receipt of proceeds
1. Security or guarantee arrangements
2. Qualified escrow accounts and trusts
3. Interest and growth factors
4. Qualified intermediaries
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Four Safe Harbors . . .
Security or Guarantee Arrangements
Mortgage, deed of trust, or other security interest in property (other than cash or a cash equivalent)
Standby letter of credit
Guarantee of a third party
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Four Safe Harbors . . .
Qualified Escrow Accounts & Trusts . . .
Escrow may not be held by the exchanger or a
related party, and the exchanger’s rights to
receive, pledge, borrow, or otherwise obtain the
benefits of the escrow account must be limited
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Four Safe Harbors . . .
Escrow Account or trust funds may pay transactional items if. . .
Related to disposition or acquisition of property, and
Typically listed as the responsibility of a buyer or seller on the closing statement
98
Four Safe Harbors . . .
Exchanger may receive money or other property directly from another party to the transaction – not from a qualified escrow, trust, or intermediary
Why? Disqualifies safe harbor
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Four Safe Harbors . . .
Interest and Growth Factors. . .
Interest earned while the sale proceeds are held by the QI may be paid into escrow
Received by the exchanger as earned income upon completion of transaction
100
Four Safe Harbors . . .
Qualified Intermediary. . .
A person (or company) who
facilitates the exchange by making
an agreement for the exchange of
properties
101
Four Safe Harbors . . .
Qualified Intermediary
Transfers titles to properties
Agreement with a person (other than the exchanger) to transfer relinquished property
Agreement with the replacement property owner to transfer that
property
102
Four Safe Harbors . . .
Direct deeding: intermediary acquires rights to transfer deeds to the properties
Sequential deeding: intermediary acquires deed to relinquished and replacement properties and
transfers deeds
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Four Safe Harbors . . .
Edward(exchange
r)
Susan(seller)
Example 3.1A Direct deeding by a Qualified Intermediary
Bob(buyer)
Qualified Intermediary
104
Four Safe Harbors . . .
Example 3.1B Direct deeding by Exchanger and Seller
Edward(exchanger)
Susan(seller)
Bob(buyer)
Qualified Intermediary
$1 million$1 million property
$1 million cash
$900,000 property
$100,000$1,000,000
$900,000
105
Before After
Edward owns Central Court Apartments valued at $1,000,000
Edward owns Silver City Apartments valued at $900,000 and has $100,000 cash
Bob has $1,000,000 Cash Bob owns Central Court Apartments valued at $1,000,000
Susan owns Silver City Apartments valued at $900,000
Susan has $900,000 cash
106
Four Safe Harbors . . .
Disqualification . . .
Intermediary may not be:
Taxpayer
Related person
Agent of the taxpayer
Person related to agent of taxpayer
“Person” also means corporate
entities
107
Four Safe Harbors . . .
Disqualification . . .
Agent of the exchanger:
Employee
Attorney
Accountant
Investment banker or broker
Real estate agent or broker
Within two-year period ending on the date of the transfer of the first of the relinquished properties
108
Four Safe Harbors . . .
Disqualification . . .
Exceptions
Performance of services that are solely with respect to exchanges of real estate
Performance of routine financial, title insurance, escrow, trust services by a financial institution, title insurance company, or escrow company
109
How Are Real Estate Agents Paid? . . .
Safe harbor arrangements allow the real estate professional’s commission to be paid on behalf of the taxpayer as a “transactional item”
110
How Are Real Estate Agents Paid? . . .
Caution: When tenants-in-common ownership interest in involved in the exchange
SEC views the ownership interest as a security, bars payment of a commission or referral fee unless the real estate professional is a licensed security representative
Exchanger may compensate a real estate agent for counseling services
111
Putting It All Together . . .
Evaluating exchange situations
Assess the overall situation
Experience and comfort level
Change of mindset
Even swap or value gain?
112
Putting It All Together . . .
Finding a qualified intermediary
Member of the Federation of Exchange Accommodators
CES designation
Bonded by insurance company
Professional background, CPA? Attorney?
113
Putting It All Together . . .
Finding a qualified intermediary
Responsibility for losses
Interest on the escrow account
Accessible to your client and you
114
Putting It All Together . . .
Finding a qualified intermediary
Other experts involved
Adequate paper trail
Accustomed to type/size of transaction
Specialty
Licensed securities representative
115
Putting It All Together . . .
Watch out for…..
Complying with time limits
Lack of preparation
Negotiating for only “Plan A” property
Other obstacles that intervene
Unscrupulous parties