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1031 Same Taxpayer Requirement

By
Services for Real Estate Pros with Atlas 1031 Exchange, LLC

One of the many 1031 exchange requirements is the same taxpayer requirement wherein the taxpayer who sells a property is the taxpayer who buys the replacement property. Though seemingly straightforward, the requirement can be challenging for a variety of reasons.  Many states impose a transfer tax for a change of record or registered title.

For example, the old or relinquished property is held by husband and wife.  The new or replacement property must be held in the name of both spouses.  If only the husband is on the replacement property deed and not both, the wife must report 50% of the gain on the sale of the property.  If the old property is held as only the wife's property, the replacement property must also be held in her name.  Seek legal counsel for a remedy once the exchange is "old and cold."

Partnerships owning property at the time of the exchange must take ownership in the same partnership.  They can not sell and purchase the property in their own names unless with careful planning at least one year prior to the exchange, they drop ownership to the partners, potentially liquidating the partnership and exchange allowing each partner to either sell or exchange in their names.  This is known as "drop and swap."  Seek counsel when considering from your accountant or legal advisor. 

If a single member limited liability company (SMLLC) is on title to the relinquished property, the single member has the option to take title to the new property in the name of the SMLLC or in the name of the member given the entity is disregarded for federal tax purposes.  This reverse is also; the relinquished property is owned by the individual.  The replacement property may be purchased in the name of the SMLLC.

What's your take away?  When considering an exchange, ask yourself whether you want to hold the new property the way you currently hold the old property.  If not, begin researching your options, NOW.  Don't wait until right before the closing.  Why, another 1031 requirement known as holding period has it's own set of rules to satisfy.

Lisa Lambert
The Law Offices of Elisabeth A. Lambert - Fresno, CA
Esq. 1031 Exchange Expert

Andrew:

Welcome to Active Rain!!! Nice post. I have a couple observations regarding the points you made.

As you probably know, regarding the husband and wife situations, it does depend on whether the husband and wife are located in a community property state. In a community property state, if the relinquished property was owned as husband and wife and the replacement property (for some reason) is only taken in the husbands name) the state (and the IRS) may deem the property owned by both husband and wife.

Regarding the drop and swap scenario, the IRS has lost three major cases challenging whether the real property interests "dropped" out of the partnership/LLC etc., met the qualified use test (the interests were dropped out fairly close to close of escrow). The cases are Magneson, Bolker and Maloney. The IRS in FSA 1999-51004 indicates that it may have dropped it's adverse position on Drop and Swaps. HOWEVER, certain states like California have taken VERY AGGRESSIVE positions regarding the qualified use test and Drop and Swaps. It is clear that the risk of 1031 invalidation is lower if the Drop occurs prior to the listing of the property (the manifestation of the intent to sell). THE STATE LAW STANCE ON THIS ISSUE IS REALLY CRITICAL because the IRS has not given any specific guidance on how far in advance of the sale that Drop needs to occur.

As you pointed out, it is very important to check with tax/legal advisors in these types of situations because states have mirror 1031 statutes as well and their state capital gain tax deferral could be affected, which will also bring more IRS scrutiny to the transaction.

Looking forward to seeing more posts from you. You are really going to enjoy Active Rain.

Apr 18, 2008 09:48 AM