Failed Exchanges – Safe Harbor and Options

We found information regarding 1031 exchanges and tax obligations on an exchange between two calendar years. Typically we have found that the Internal Revenue Service ("IRS") will not challenge or disqualify a 1031 Exchange transaction as long as the investor has followed the Safe Harbor provisions or guidelines provided by the Treasury Regulations. What this means is to use a qualified 1031 intermediary who will hold the sales proceeds until a like kind property is located, so the sale proceeds never actually reached your account. If you do a 1031 by yourself and receive the funds from the sold property then you still may have an option on when to account for the taxes.

If an exchange fails, funds are returned to the investor and taxes are owed. But if a failed exchange runs over two different calendar years, investors may have an option on when to pay taxes. Let’s say the sold property closes escrow on December 1, 2011 and as of the 45th day of the exchange, the investor has not found a replacement property so the the exchange is now cancelled. The sale proceeds from the sold property must then be returned to the investor in January 2012 whic is the 46th day of the exchange. The investor has the option to recognize the tax liability either in 2011 or 2012. The investor sold the property in 2011, but they had the right to the benefit in 2012. The investor should contact their accountant for the best option, but this scenario does provide such an option.

Reverse 1031 Exchange: To Buy Before you Sell

n a standard 1031 Exchange a property is sold and then replacement property is acquired. If you locate a property you want but have not sold a property you currently own then a reverse 1031 could be advantageous. This is not a common in practice but has been done by investors. Some common reasons to do a reverse exchange is you have located a property you want based on price, location, zoning or other reason, but you need to act now in order to buy this property. Not a problem simple purchase this new property and begin the process of a reverse 1031 exchange.

Another reason is that many investors have been caught in the middle by not locating an exchange property in the 45 days to identify and 180 days to close timeframe. Locking up that exchange property in advance solve this dilemma for investors, and it may be easier for you to sell your current property than to locate a replacement property. In a slow real estate market it actually maybe harder to sell your current property and easier to get the replacement, especially, if the replacement property is at a low price and ideal location.

Acquiring replacement property first in a Reverse 1031 Exchange can cause some difficulties though. Since you have not sold your current property then you need the deposit funds for the new property. The biggest obstacle is that the two properties can’t be owned at the same time. In theory, an exchange is going from one property to another, so title to the new property and the old property can not be held at the same time. You will need to get a Reverse Exchange Asset Company to act as a straw buyer for the replacement property. You still must adhere to the 45 and 180 day rule as well.
So in a Reverse Exchange the property that will be sold to complete the exchange must be named by day 45 and it must close escrow on or before day 180.

Locating a reputable 1031 exchange company is the key in this manner, as they will act as the straw buyer. We at vacantlanddeals.com have a number of low priced properties that will be ideal buying opportunities. You can buy one of our industrial or residential low priced properties and sell your agricultural land parcels that you may have bought at the height of the market. It is an ideal time to take advantage of lower price Lancaster and Palmdale land, and we have inventory currently that can fit a reverse 1031 exchange.

The 1031 Exchange Process Taken Step by Step

1. You will need to set up an exchange account with an authorized 1031 exchange firm. The 1031 account has to be opened before the close of escrow on the property being sold. It can be done in a rush, but it is best to have this process planned in advance with the escrow company.

2. Write up the 1031 Exchange terminology in the sales contract or escrow instructions. The appropriate 1031 language should be added to the sales contract or escrow instructions for the property being sold. The exchange company can draw up the proper language.

3. Execute the exchange agreement with the escrow company and exchange firm with the necessary signatures and documents.

4. A like kind replacement property must be located within forty five days. A like kind property essentially means real estate for real estate. This like kind property must be located within forty five days per the IRS requirement. Once the replacement property has been identified then the sale and escrow must be completed within six months.

5. Forward the 45 day identification letter. This identification letter has to be submitted within forty five days, and the replacement property must be located and identified. This is typically the most difficult part since you need to secure the acquisition of a second property within this six week period.

6. Forward funds for deposits, this can be done from a 1031 exchange account. There is typically a form from the 1031 exchange company. It is also possible for the deposit to come from your personal account with a reimbursement later.

7. Then you must complete the execution of the escrow documents from both parties on your replacement property, and fund the purchase with your prior closed escrow funds. If the replacement property requires a loan, or it is an income property then other steps maybe needed. Thus identifying an experienced 1031 firm will assist in more complicated exchanges. Also additional funds may be needed if the replacement property has higher value then the prior sold property. Again the 1031 exchange firm can assist with these additional steps.