Section 1031 Exchanges - Tax-Deferred or Tax-Free?

Did you know that after you use a Section 1031 exchange to acquire new property, you will face the same tax-related issues when you decide to sell that property? Is there any way around paying capital gain taxes when you sell your property? With the issuance of Rev. Proc. 2008-16 and some advance planning, there are now two answers to that question instead of one. The one answer we always used to have was, "Yes, there is a way, but you have to die to accomplish it." (When a property owner passes away, property owned passes to heirs at a stepped-up basis, i.e., the value of the property at the time of death. If the heir(s) sell for that value, there is no capital gain. Helpful for your heirs, but not too much that you can do with it.) That answer isn't one that most people want to hear. Now, however, there's a new, more acceptable answer in the affirmative.

Let's assume that Mr. and Mrs. Jones own a farm worth $800,000 that has a tax basis of $200,000. (Substitute "apartment building," "business location," or whatever fits your situation for "farm.") Further, let's assume that Mr. and Mrs. Jones do not live on this farm, so there is no personal residence exclusion available to shelter some of their $600,000 capital gain if they were to sell. They're not too thrilled with the prospects of being taxed on a $600,000 capital gain on this year's taxes, but they do want to sell. What to do? How about this:

1. Mr. and Mrs. Jones sell their farm as the relinquished property in a Section 1031 exchange.
2. As their replacement property in the exchange, they acquire two vacation houses, each worth $400,000 (House #1 and House #2)
3. Mr. and Mrs. Jones rent the two properties in accordance with the new IRS Revenue Procedure 2008-16, which sets clear requirements for vacation home property to qualify for a tax-deferred exchange.
4. After a period of time (at least two years to satisfy the requirements of Rev. Proc 2008-16), Mr. and Mrs. Jones sell their residence using the personal residence exclusion provisions of Section 121 of the Internal Revenue Code and move into House #1.
5. After occupying House #1 for a period of at least two years to establish it as their personal residence, Mr. and Mrs. Jones sell it using Section 121 to exclude their capital gain and move into House #2. (I think you can finish the steps yourself.)

Can we quantify the benefits of such a strategy? Mr. and Mrs. Jones exclude the original $600,000 of capital gains from taxation. In addition, they can shelter the appreciation of their vacation homes over the period of time they own them (to the extent of the $500,000 limit on each residence). This strategy results in three interrelated benefits:

• The exiting of the business of owning the farm land (or apartment house, or whatever),
• The exclusion of otherwise taxable capital gains, and
• A potentially large addition to their liquid assets for retirement.

Is this legal? Darned straight it is.It may or may not be something that you or your client would ever want to actually implement, but perhaps it will help you better realize the tremendous benefits that Section 1031 of the Internal Revenue Code affords us all when we plan properly.

(We strongly urge you to consult your tax advisor to see how this exit strategy could apply in your situation.) 

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Please consider IOWA EQUITY EXCHANGE as your source for answers to your questions about Section 1031 like-kind tax-deferred exchanges. Contact us at your convenience for prompt, accurate information. Please think of us for your next exchange.

Ken Tharp

Providing Qualified Intermediary services for Section 1031 tax deferred exchanges all over the United States. Headquartered in Iowa, our services are available in Missouri, Kansas, Nebraska, Colorado, North Dakota, South Dakota, Minnesota, Wisconsin, Illinois, and all other states.

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Copyright © 2008 By Ken Tharp, All Rights Reserved. * Section 1031 Exchanges - Tax-Deferred or Tax-Free? * Contact Ken Tharp for information on Section 1031 tax-deferred exchanges anywhere in the United States.