Here is a quick rundown of what you need to know:
For 100% deferral
To have 100% deferral, your replacement property/properties need to be equal to or greater than what you sell your relinquished property for minus customary closing costs (commissions and escrow fees….approx. 7% if you are paying 6% commissions). Anything below that number will be exposed to taxes, up to the extent of your gain. You need to reinvest BOTH your basis and your gain. That is why we are looking at the sales price, not just the net proceeds.
Timeframes
Your clock starts ticking the day you close on the relinquished property sale. You will have 45 days from that date to identify what you will purchase and 180 days to close on it. The 45 days are included in the 180 days. So, you don’t get 45 and then a fresh 180! You do not have to have an accepted offer when you identify the property; however, you cannot change the Identification Notice after your 45th day. You will have to be able to purchase something that is on your list. There are no extensions. Every day counts!
Identification Notice
If you only identify up to 3 properties, please use the 3 Property Rule. The 200% rule is only for four properties or more. You need to list complete addresses, and if you are purchasing a % of a property, you will need to list that as well. It needs to be signed by all exchangers. If it is not signed, it is not valid. Fax or scan and email are fine. Originals are not required.
While avoiding those steep capital gains taxes is, for most, the primary consideration for engaging in a 1031 tax-deferred exchange, there are many other significant advantages to a tax-deferred exchange:
What is a Reverse 1031 Exchange?
Reference Documents Available for Download:
“Balancing the equities” is vital to defer all capital gains taxes. This means that the debt acquired on the replacement property must be equal to or greater than the debt on the relinquished property. But it’s also important to remember that the money invested in the replacement property must be equal to or greater than the money from the sale of the relinquished property.
If the equities do not balance, expect a heavy tax consequence. That’s because any money earned from the relinquished property not reinvested in the replacement property will be taxed. And another important thing to mention is that if the debt on the replacement property is less than the one on the relinquished property, the difference will also be taxed. However, if the taxpayer adds cash to the transaction to make up that difference, he/she wouldn’t be taxed.
“Identification” refers to the IRS requirement that taxpayers must identify in writing the property they intend to acquire as replacement property in a 1031 tax-deferred exchange. U.S. Treasury regulations state that a replacement property is “identified” only if it is designated in writing, signed by the taxpayer, and sent before the end of the 45-day identification period to either the seller of the replacement property or another person involved in the exchange who is not disqualified¹ (e.g., seller’s broker, escrow officer) or qualified intermediary (“QI”).
The identification notice must be sent to one of the parties noted above on or before midnight of the 45th day of the exchange period.
The identification notice must be signed by the taxpayer. For example, if the taxpayer is a corporation or partnership, a person authorized under the corporate bylaws or partnership agreement must sign the identification notice. The Treasury Regulations do not permit an agent – for example, the taxpayer’s real estate agent – to sign the identification notice.
Any kind of writing (a form, letter, etc.). The contract for the replacement property will satisfy the writing requirement so long as the contract is signed by both the taxpayer and the seller within the 45-day identification period.
Yes, if it is in writing and in the same manner as originally made and is sent on or before midnight of the 45th day of the exchange period. For example, if the identification notice was writing given to the QI, it must be revoked in writing and given to the QI by the 45th day of the exchange. Likewise, if the identification was made in a written contract, the contract must be amended by the 45th day of the exchange to provide for the revocation.
If the taxpayer makes multiple identification notices without revocation, those notices will be treated as supplements to the first identification.
Unambiguously. A legal description, street address, or distinguishable name (e.g., Mayfair Apartment Building), along with the city and state, will satisfy this requirement.
Three properties of any value or any number of properties as long as the combined value does not exceed 200% of the value of the relinquished property. If the exchanger identifies more properties than allowed, they will be treated as if they identified nothing, and the exchange will fail unless they complete the acquisition of 95% of the value of all identified properties.
Since the failure to properly identify replacement property is fatal to an exchange, this area is subject to fraud. For example, in Dobrich v. Commissioner (9th Cir 1999) 188 F3d 512, the taxpayer, Mr. Dobrich, backdated his identification notice. The IRS imposed a fraud penalty equal to 75 percent of the underpayment of tax that was due. Mr. Dobrich paid over $1,000,000 in back taxes plus a $774,307 fraud penalty.
Some key points to keep in mind:
Any taxpayer considering an exchange should consult with their tax advisor to determine their adjusted basis, anticipated gain, potential capital gains, tax exposure, and whether the equities in their contemplated exchange are balanced.
Maui Property and the Maui Property team encourage you to seek professional legal assistance when performing a 1031 exchange.
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Listing courtesy of Compass.
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Listing courtesy of Coldwell Banker Island Prop-Ku.
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Listing courtesy of Polaris Pacific.
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Listing courtesy of Hawaii Life (W).
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Listing courtesy of Island Sotheby's Int'l Rlty(L).
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Listing courtesy of The Maui Real Estate Team, Inc.
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Listing courtesy of Island Sotheby's Int'l Rlty(W).
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Listing courtesy of Coldwell Banker Island Prop-Ku.
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Listing courtesy of Hawaii Life (W).
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Listing courtesy of Keller Williams Realty Maui-L.
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Listing courtesy of Coldwell Banker Island Prop-KP.
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Listing courtesy of Coldwell Banker Island Prop-KP.
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Listing courtesy of Keller Williams Realty Maui-L.
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Listing courtesy of Hawaii Life (W).
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Listing courtesy of Hawaii Life (W).
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Listing courtesy of Welcome Hawaii Properties.
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Listing courtesy of Keller Williams Realty Maui-Ka.
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Listing courtesy of Hawaii Life (W).
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Listing courtesy of Keller Williams Realty Maui-L.