What Are the Criteria for Disqualifying a Property From Being Used in a 1031 Exchange?

The 1031 exchange involves several rigid requirements, which include:

●     The replacement property/properties obtained must be of equal or higher value compared to the relinquished property.

●     The investor/exchanger must comply with strict calendar deadlines.

●     All funds and proceeds involved in the exchange process must be handled by a Qualified Intermediary (QI).

Additionally, the eligibility of properties is another crucial and non-negotiable factor in a 1031 exchange. Although this process can defer capital gains tax and depreciation capture expenses, not all properties are eligible for the exchange.

Not So Long Ago..

Once upon a time, there was a time when 1031 exchanges allowed for certain types of personal or intangible properties to be exchanged. Machinery, equipment, and even collectibles were eligible for exchange, as well as patents and copyrights. However, things changed with the enactment of the Tax Cuts and Jobs Act of 2017.

With the new legislation, many assets that were previously allowed in a like-kind exchange became disqualified. The law now stipulates that only "real property held for productive use or investment" is eligible for a 1031 exchange. This means that only properties like land, buildings, and other permanent structures that are used for business or investment purposes qualify for the exchange.

While the new law may have limited the scope of eligible assets for 1031 exchanges, it still provides a valuable opportunity for investors to defer paying taxes on the gains from their real estate investments. By exchanging their properties for similar ones of equal or greater value, investors can continue to build their real estate portfolios without incurring significant tax burdens.

Taking a closer look

 It's important to note that not all types of real estate are eligible for a like-kind exchange. The IRS has outlined specific categories of real estate that do not qualify for this treatment, which include:

If you're considering purchasing a property with the intention of flipping it for a profit, it's important to note that you cannot include it in a 1031 exchange. The IRS views this type of real estate ownership and transaction as "held primarily for sale" or "stock in trade."

To determine if a property is held primarily for sale versus being held for investment purposes, there are specific parameters to consider. These include:

●     The purpose for which the property was initially purchased and its intended use at the time of sale

●     The extent of any improvements made to the property

●     The number of sales made, as well as the frequency of those sales

●     The investor's primary occupation or business

●     The use of advertising, promotion, or other efforts to attract buyers

●     The property being listed with brokers

●     The length of time the property is held

In short, if an investor's intention was to purchase a property, make improvements to it, and then sell it quickly to another buyer for a profit, the property is not eligible for a like-kind exchange. Additionally, any investment property sold within 12 months of acquisition can raise a red flag with the IRS.

Primary Residence

If you're wondering whether you can exchange your primary residence, the answer is no. Although the value of your home may increase over time, it is not considered real estate that is being held for trade or investment.

However, there is a possible way to qualify your primary residence for a 1031 exchange treatment. If you decide to rent out your home instead of living in it, it may be eligible, yet some very strict rules apply. Firstly, you cannot live in the property while it is being rented out. Additionally, you must plan to hold onto the property and rent it out for a minimum of two years for it to qualify for the exchange.

Foreign Real Estate

If you're considering a 1031 exchange involving foreign real estate, there are a few rules to keep in mind. While you can relinquish a property in the United States for a replacement property in the U.S. Virgin Islands or Guam, you cannot exchange it for property in Puerto Rico, Canada, Mexico, or any other location outside the United States.

However, you can exchange foreign real estate that is held for trade or investment for real property in any country other than the United States. It's important to note that each country has its own rules and regulations for the purchase, sale, and exchange of real estate, so be sure to do your research before proceeding with any foreign property transactions.

What to know before exchanging

If you're considering a 1031 exchange, there are several important factors to consider before proceeding. First and foremost, you need to ensure that the real estate you want to exchange and the property you want to exchange into are both IRS-qualified. This means that they must be "like-kind" properties that are held for productive use or investment.

It's also essential to understand the deadlines and regulations involved in the exchange process. For example, you have 45 days from the sale of your relinquished property to identify potential replacement properties, and you must close on the replacement property within 180 days of the sale of the relinquished property.

Failing to comply with the rules and regulations of a 1031 exchange can result in significant tax consequences. Instead of deferring your capital gains tax, you may end up with an unexpected tax bill. Therefore, it's crucial to consult with a qualified tax professional or attorney who can guide you through the process and ensure that you're following all the necessary steps to make a successful 1031 exchange.

General Disclosure

Not an offer to buy, nor a solicitation to sell securities. All investing involves risk of loss of some or all principal invested. Past performance is not indicative of future results. Speak to your finance and/or tax professional prior to investing. Any information provided is for informational purposes only.

Securities offered through Emerson Equity LLC Member: FINRA/SIPC. Only available in states where Emerson Equity LLC is registered. Emerson Equity LLC is not affiliated with any other entities identified in this communication.

1031 Risk Disclosure:

• There’s no guarantee any strategy will be successful or achieve investment objectives;
• All real estate investments have the potential to lose value during the life of the investments;
• The income stream and depreciation schedule for any investment property may affect the property owner’s income bracket and/or tax status. An unfavorable tax ruling may cancel deferral of capital gains and result in immediate tax liabilities;
• All financed real estate investments have potential for foreclosure;
• These 1031 exchanges are offered through private placement offerings and are illiquid securities. There is no secondary market for these investments.
• If a property unexpectedly loses tenants or sustains substantial damage, there is potential for suspension of cash flow distributions;
• Costs associated with the transaction may impact investors’ returns and may outweigh the tax benefits