Many owners of
investment and business properties are not aware of the opportunity to
save thousands of dollars in capital gains taxes by exchanging, rather
than selling, these capital assets. A Like Kind Exchange under
Section 1031 of the Internal Revenue Code provides that the federal
capital gains taxes are deferred when business or investment real estate
or personal property is exchanged rather than sold. Basics about
exchanges include:
- Most sellers of
business or investment property will pay federal capital gains
taxes of 20% of the appreciation, plus 25% of any depreciation
taken on the property, less sales costs.
- Most states also
impose their own income tax on the sale of business or investment
property, but many recognize the deferral of such taxes for a Like
Kind Exchange under Section 1031.
- Payment of the federal
capital gain taxes, and most states' income taxes, is deferred
until the property received in an exchange is sold or otherwise
conveyed in a taxable transfer.
- A sale of business or
investment property followed by reinvestment in other property
does not qualify as a Like Kind Exchange. An investor must set up
an exchange before title to the property being sold is
transferred.
- A qualified
independent third party must be used to facilitate the exchange to
satisfy the requirements imposed by the I.R.S. for a valid 1031
exchange. Using a Qualified Intermediary under Section 1031
ensures an exchange will receive favorable tax treatment.
The Qualified Intermediary participates on the investor's behalf
by acquiring and conveying exchange properties and holding the
sales proceeds.
- Property to be
exchanged must be investment property such as raw land held for
appreciation or second "vacation" homes, or trade or
business property such as rental real estate, farm and ranch real
estate, and aircraft, equipment and other personal property used
in the taxpayer's business.
- All properties given
and received in a Like Kind Exchange must be "like kind"
to one another. Fortunately, all interests in real estate
are like kind to each other, making it possible to exchange
improved property for unimproved property, urban property for
rural property, a condominium for a duplex, a rental house for a
motel, vacant land for an office building, etc. Most
corporate aircraft, both fixed wing and helicopters, are also like
kind to one another.
- An investor exchanging
property has 45 calendar days after the closing to identify up to
three properties he or she is interested in acquiring, and 180
calendar days after the closing to acquire any or all of the
identified property or properties as part of the exchange.
- To defer all of the
capital gains, an investor must acquire property of equal or
greater in value to the property sold, and must reinvest all
equity from the property sold. Receiving cash, or trading
down in value, is treated as boot and taxed as capital gain.
NOT TO BE CONSTRUED TAX OR LEGAL ADVICE.
IF TAX OR LEGAL ADVICE IS NEEDED, AN ATTORNEY, ACCOUNTANT OR OTHER
QUALIFIED COUNSEL SHOULD BE CONSULTED.
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