Disadvantages of the Structured Sale Strategy

By
Services for Real Estate Pros with Exeter 1031 Exchange Services, LLC President & CEO

I posted an article last week regarding the Structured Sale tax deferral strategy.  I received a number of private emails requesting more information, including more information about the potential downside and/or disadvantages of implementing a Structured Sale strategy.  These are great questions, of course, and an important part of your due diligence process. 

Disadvantages of the Structured Sale Strategy

The first (and major) disadvantage is that the Internal Revenue Service has not issued any guidance or rulings related to the Structured Sale at this point in time. 

The second is that Structured Sales are drafted pursuant to Section 453 of the Internal Revenue Code, which means that certain types of depreciation recapture are not deferred.  Essentially, excess depreciation taken over the straight line method of depreciation cannot be deferred and would be taxed in the year the real estate was sold.  This is just like an installment sale note or seller carry back note would be taxed.

Finally, any amount of mortgage pay-off in excess of your adjusted cost basis ("mortgage over basis") can not be deferred. 

Other Miscellaneous Disadvantages

The Structured Sale is a more complicated income tax structure than with other income tax planning strategies such as the 1031 exchange.  Taxpayers using the Structured Sale must follow the specific requirements imposed by Section 453 of the Treasury Regulations.  Fees to structure the Structured Sale are often much higher than other income tax planning strategies such as a 1031 exchange. 

Comments (5)

Mike Crosby
Mike Crosby Realty - Placentia, CA
Placentia- Yorba Linda Real Estate - 714-742-2897

The advantage of the 1031 is the is case law to support the various types of exchanges. 

Nov 20, 2013 01:32 AM
Bill Exeter
Exeter 1031 Exchange Services, LLC - San Diego, CA
1031 Tax-Deferred Exchange Expert

Hi Mike, you are abolutely right! 

Nov 20, 2013 08:33 AM