1031 Exchange Archives

The Important Tax Benefits of Real Estate Investing

May 18, 2023 by Marco Santarelli

If you are planning on increasing your wealth, the best investment to deal with is real estate. Investing in real estate has some incredible tax benefits. Other benefits are an increase in property value due to appreciation and good cash flow in the form of rental income. It is easy to find the lists of these tax benefits of real estate investing, like the ability to deduct nearly every expense associated with the real estate or how to qualify to exclude from your income all or part of any capital gain from the sale of your main home.

However, it is equally easy for someone to inflate or conflate various tax benefits given by the IRS. Investors dealing in real estate get the maximum tax benefits in the name of deductions, which we'll discuss in detail. Deductions that are accounted for can be depreciation, property tax, repairs, or any other form of expenses. These breaks in taxes are helpful to a lot of people dealing with real estate as their full-time business. Let’s look at the top tax benefits of investing in real estate using hard numbers. This is the basic introduction to how tax benefits in real estate work.

The average home in the United States costs around 220,000 dollars. Yet many people don’t need a three or four-bedroom single-family home. Nor should you pay that much for an investment property. A good rule of thumb for investors is to pay no more than 70 percent of the ARV or After Repair Value of the property.

We’re going to use a property purchased for 130,000 dollars. This may be a small starter home in an average neighborhood or a full-sized home in a working-class neighborhood. The house would then be worth around 185,000 fixed up if we were going to pay cash for the repairs. You don’t want to overpay for the property.

Determine how much the property would rent for it after repairs.
Divide that by the property value.
You want a 1 percent rate of return at a minimum.
This means that if you can rent the property for 1600 dollars a month and have 300 dollars a month in expenses, your net revenue is 1300 dollars a month.
On a 130,000 dollar starter home, this is a 1 percent ROI and makes it a good deal.
If the property costs 130,000 dollars now but requires 20,000 in repairs, it probably isn’t worth it unless you’re going to sell it soon to capture the increased equity.
Don’t forget to factor in expenses like property management fees, property taxes, and insurance if you’re going to hold onto the property in addition to expenses like the mortgage.

Tax Benefits of Real Estate Investing

Suppose you want to buy a 130,000 dollar house with 20 percent down. That means the down payment is 26,000 dollars. This results in a mortgage of 104,000 dollars. We used a mortgage calculator assuming a 104,000 dollar mortgage at 5 percent over 30. This results in a monthly payment of 558 dollars a month. As a real estate investor, your mortgage interest becomes tax-deductible, while payments toward the principle are not. This makes nearly all of the roughly six hundred dollar house payment a business expense you can write off.

Because you put 20 percent down on the property, there is no PMI or private mortgage insurance.

However, property insurance will be tax-deductible, too. Homeowner's insurance ranges from 1 to 2 percent a year. If we assume a 1 percent homeowner's insurance policy, the premiums are 1200 to 1300 dollars a year. Property management fees are tax-deductible business expenses. If the rent on our 130,000 investment property is 1300 dollars a month, you’ll pay roughly 130 dollars a month or 1560 dollars a year for someone else to collect the rent.

All the costs associated with property acquisition can be written off. This list includes title insurance, legal fees, real estate agent commissions, transfer taxes, back taxes, and closing costs. Don’t be afraid to hire a real estate attorney if it helps you avoid major mistakes. The cost of asking a professional about the tax benefits of investing in real estate is tax-deductible, too.

Property taxes vary wildly across the country. Some states lack a property tax, while the rate may be negligible on rural properties. The average property tax rate in the US is 1.2 percent. This translates to a $1,560 property tax bill for homeowners. Unfortunately, that’s factoring in the homestead exemption property tax investors don’t get.

Assume a $2,000 to $2,400 a year property tax bill. The property taxes you pay offset the potential income taxes you would owe if your real estate properties are held by an LLC. Or they’re treated as a business expense for you as a private investor, reducing the taxable income you’ll owe on the property. Note that you’ll still enjoy the same tax benefits of real estate investing if it is held in a private LLC as held in your name.

What Are Tax Benefits of Real Estate Investing?

Everyone pays property taxes, but how much tax you pay can be reduced by utilizing certain tax breaks available in real estate. Let's now discuss each of these tax benefits in detail and how to use them to maximize your savings.

Depreciation

What is Depreciation?

One of the greatest tax deductions real estate investors enjoy is depreciation. Like any other asset residential real estate is also an asset that breaks down over time. Depreciation is a deduction taken on materials that break down. The IRS uses depreciation to acknowledge that an asset wears down over time. It is like an allowance given for exhaustion or wears and tear of the property, including a reasonable benefit for obsolescence. Depreciation is charged in different years for residential and commercial property. For residential properties, it is calculated in 27.5 years, and for commercial, the same is 39 years.

It is an incredible benefit given by the IRS to real estate investors. Even though anything that breaks down on the property can be deducted, we all know that property values generally go up over time. Therefore, depreciation on real estate is often known as a “phantom deduction” because although we deduct the cost, the actual loss never really occurs.

How is Depreciation Calculated?

Depreciation is charged by the method named (MACRS) Modified Accelerated Cost Recovery Method. In MACRS the residential rental property and structural improvements are depreciated over 27.5 years, while appliances and other fixtures are depreciated over 15 years. Whatever is the cost of your residential property (excluding the cost of the land), it will be spread out over 27.5 years and deducted every year.

Note that you can only depreciate the building, not the land.

For simplicity’s sake, we’ll say the land is worth 30,000 dollars while the house is worth 100,000 dollars, which will be spread out over 27.5 years.

This means you would divide $100,000 by 27.5 = 3636.36. Hence, you can deduct $3636.36 every single year for the next 27.5 years on your investment property.

And that much of the profits from the property are shielded from income taxes because it is offset by the presumed losses from depreciation. This is separate from the tax-deductibility of actual repairs like replacing the roof or dead air conditioner.

If you made major improvements to the property, such as the fixer-upper scenario, those improvements are included in the depreciation. If you bought the house for 130,000 dollars and made repairs and renovations that made it worth 180,000 dollars, you have an additional 50,000 dollars of cost basis to use for depreciation purposes.

Note that minor repairs like a new hot-water heater or patched roof don’t count in depreciation.

Important Tips About Using Depreciation as a Tax Benefit in Real Estate

Depreciation will start the moment the property is officially available for occupancy.
This means depreciation doesn’t start the day you bought the property but the day you started trying to sell it or find a renter.
Conversely, it means you can claim depreciation even if the property is vacant for several months.
Depreciation ends if you sell it, exchange it or retire it from service as a rental property.
For example, you can’t claim depreciation if you move into it and make it a permanent residence.
The catch in depreciation as a tax benefit of real estate investment is that when you sell the property, that entire deducted amount may be taxed at a 25% rate, in addition to any other capital gains taxes.
However, if you didn’t make money on the sale, then IRS will not tax your old depreciation amount.

Lower Capital Gains Tax

Capital gains are the profits you make when you sell a property. One of the tax benefits of real estate investing is that there are lower taxation rates on your capital gains. The gains that investors get from selling their investment property for sale are termed capital gains which are of two types as mentioned below.

Low tax rates on capital gains are an advantage if you build your long-term investment strategy around strategically selling real estate for growth or living expenses. Generally, in all tax brackets, capital gains taxes are considered better than the equivalent income tax on your ordinary income.

Short-Term Gains: The gains that are received from investment properties that are held for less than one year are called short-term gains. Investors have to pay tax according to the bracket under which they fall. There is no special tax benefit in real estate for short-term capital gains.
Long-Term Gains: The gains that are received from investment properties that are held for more than one year are termed long-term capital gains. The tax rate is lower in the long-term capital gains because of which investors prefer the latter over the former. The long-term capital gains tax is either 0%, 15%, or 20%, depending on what income tax bracket you are in.

1031 Exchange

As a real estate investor, you can use this tax code called 1031 Exchange to sell a property and use the profit to buy a new one that is of equal or greater value. In this way, you can defer paying taxes until that next property is sold or you can opt for another 1031 Exchange. When you choose to sell your property, you are required to pay taxes for your capital gains.

With the help of section 1031 of the Internal Revenue Code, you are permitted to postpone paying taxes when you reinvest those gains in another property. IRS considers that you are exchanging your old property for another real estate property. This is one such type of swap in which there is no tax paid; it is deferred legally.

Here are some of the factors which the 1031 exchange must meet.

The property which has been replaced and the property or properties bought in its place must have the same or greater value.
The IRS requires that you identify the property you plan to buy within 45 days and you also must close on that property within 180 days.
The properties included in the transaction must be similar. A real estate property cannot be exchanged for some other type of asset, such as a real estate investment trust (REIT).
The exchanged properties should be used for any productive purpose in business such as for investment.
Any cash or property received through the transaction that is not considered like-kind property is considered boot and is subject to taxation. Therefore, you can touch the cash. You must use an intermediary who will hold onto the cash while you wait to close on the new deal. If you do want to take out some of the profit, that amount will be taxed.

No FICA Tax

The Federal Insurance Contributions Act helps in the splitting of tax between the employee and the employer, and the rate of tax is 15.3%. If you are self-employed and have no employer, you are responsible for the full 15.3%, which is known as Self-Employment Tax. Now you might be thinking what is the tax benefit here for real estate investors?

The US Government does not currently look at rental real estate as a job or self-employed business. Therefore, a rental property income is not generally taxed as “earned income” and does come under FICA. Remember, it depends on how you earn from real estate. If you own a holding company and draw a salary, you would come under FICA.

Tax Benefits From Refinancing Your Mortgage

Refinancing is also considered one of the tax benefits of real estate investment. Exchanging your old mortgage with a new one at a new interest rate is known as Refinancing your Mortgage. Refinancing provides the borrower with fresh money at lower interest rates due to which the homeowner can lower his/her monthly payment amount.

As he/she obtains the loan at a lower rate of interest and consolidates all the debts, he/she now has to pay only one loan amount, which is obtained at a lower rate of interest and is left with some cash in hand. You don’t need to pay taxes on this. You’ll need to pay taxes when you sell the property, but you can use that money right now with no tax at all. The cash in hand after refinancing is non-taxable.

How Do You Take Advantage of These Tax Breaks?

The simplest approach is to document all of your expenses from property repairs to ongoing maintenance to insurance to taxes. Track one-time expenses like the cost of listing it for rent or sale. Your accountant will total up these expenses to determine your total business expense write-off. More importantly, what you pay your attorney or accountant to manage your business is also a tax-deductible business expense. The costs of acquiring and fixing up a property occur on a case-by-case basis.

Let’s jump to the tax calculations for the second year of ownership. We’ll use conservative estimates, though you might keep costs down.

Property taxes – $2000 a year

Depreciation – $4000 a year

Mortgage interest – $6000 a year

Property management – $1560 a year

Repairs – $2000 a year

Insurance – $1300 a year

Legal and tax preparer fees – $500 a year

That totals up to $16,860 a year in expenses. We already estimated an income of $1,300 a month every month or $15,600 a year. In this case, you’d owe no income tax on the property. If you were charging $1,500 a month in rent, you’d pay a little more in property management fees but only have to pay income taxes on $2,000 a year. In reality, you’re clearing closer to $6,000 a year, because you aren’t paying for the property’s depreciation. Know that these are rough, back-of-the-envelope calculations regarding the tax benefits of real estate investing. The costs and benefits of owning a particular property should be done on a case-by-case basis.

How Can You Lower Your Tax Bill as a Real Estate Investor?

Hold the property for more than a year to reduce capital gains taxes on the property’s appreciation. This makes a fix and rents a better strategy than flipping houses. You could even buy run-down properties, fix them up, manage them for 13 months, and then sell them to another investor. Just don’t get yourself classified as a dealer instead of an investor, because the self-employment category will double your FICA taxes.

Another option is owning the property as a legal liability corporation. You can receive the profits from the LLC, but you are personally shielded from lawsuits. You have some control over when you sell the property or pay the property taxes. Run the numbers. You might want to delay paying the property tax bill until January next year to offset the profits if you had a major repair bill this year.

If you sell the property, you’ll owe capital gains taxes. A like-kind exchange under Section 1031 of the tax code allows you to defer paying these taxes. Always work with a good real estate tax advisor to handle such a rollover. Another option is selling the property to the tenant or another investor under an installment deal. It lets you write off the value of the property with each installment, though you run the risk of only owning half a house if they default.

In theory, you can reduce your tax bill by borrowing against properties you own to buy new properties rather than selling them, too. On the other hand, you don’t want to pay more for repairs, services, or financing to get a tax write-off. For example, you’re not saving money if you pay the bank an extra 1000 dollars to get a 250 dollar tax write-off.

Set up a dedicated home office that you only use for work. Then you can deduct part of your mortgage and utilities as a business expense. Get organized. For example, you should keep track of mileage and travel costs, so you can include them as business expenses on your taxes. Document what you pay to attend real estate investing seminars or software you buy to run your business.

For simplicity’s sake, set up a bank account that is only used for managing rental properties. Rent is deposited into the account, and you only pay expenses for the rental properties out of that account. Then you don’t accidentally try to write off personal home repairs. However, this approach does make it difficult to write off a home office.

Concluding Thoughts on Tax Benefits of Real Estate Investment

Real estate investing enjoys many tax benefits. It is one of the most tax-advantaged investments compared to other investments. It depends on the investors and how they utilize these investments to the best of their advantage. It requires careful planning and effort to maximize your tax deductions while remaining in compliance with the complex regulations involved. One can attain financial freedom by learning the right way to invest in the real estate industry. It is wise to hire a good CPA or tax expert who will save you more money than they cost. They will help you in plotting your tax strategy because the US tax code is quite complex and it is difficult to understand all the rules and regulations.

Tax Benefits of Real Estate: Places Where You Can Reap Maximum Benefits

Here are some of the best states in the U.S. for owning a property. This list takes into account median home values as well as state and local tax rates, including income tax rates, and property taxes as a percentage of market value or assessed tax value (whichever is applicable). If you buy a property or live there, it’s an excellent investment. We have listed each state's effective property tax rate, median home value, and calculated annual taxes on median home values —for an easier understanding of these tax rates.

The tax rates have been taken from Smartasset.com and median values have been taken from Zillow.com.

1. Alabama

Alabama has both a low tax rate and home prices that are well below the median home value in the U.S. For residential property, the assessed value is 10% of the appraised (or market) value. So, for example, a home with an appraised value of $100,000 would have an assessed value of $10,000. We have taken the median home value as an assessed value without any exemptions.

Median Home Value: $143,072
State Income Tax Rate: 2% – 5%
Avg. Effective property tax rate: 0.42%
Annual Property Taxes: $600

2. Nevada

Nevada's average effective property tax rate is just 0.69%, which is well below the national average of 1.08%. There are numerous tax districts within every Nevada county. County Assessors are required to reappraise all property at least once every five years. The assessed value is equal to 35% of that taxable value. Thus, if your County Assessor determines your home’s taxable value is $100,000, your assessed value will be $35,000. Tax rates apply to that amount. We have taken the median home value as a taxable value without any exemptions.

Median Home Value: $309,730 (Zillow)
State Income Tax Rate: 0%
Avg. Effective Property Tax Rate: 0.69%
Annual Property Taxes: $2,137

3. Florida

The state of Florida's average effective property tax rate is 0.98%, which is slightly lower than the U.S. average of 1.08%. Property tax rates are applied to the assessed value, not the appraised value. The most widely claimed exemption is the homestead exemption. Let’s say you have a home with an assessed value of $100,000. The first $25,000 would be exempted from all property taxes.

The next $25,000 (the assessed value between $25,000 and $50,000) is subject to taxes. Then, the next $25,000 (the assessed value between $50,000 and $75,000) is exempt from all taxes except school district taxes. Finally, the remaining $25,000 is also taxable. We have taken the median home value as an assessed value without any exemptions.

Median Home Value: $252,309
State Income Tax Rate: 0%
Avg. Effective Property Tax Rate: 0.98%
Annual Property Taxes: $2,472

4. Louisiana

Louisiana has the third-lowest effective property tax rate of any U.S. state. Only Alabama and Hawaii residents pay less on average than residents of Louisiana. For residential property in Louisiana, the assessed value is equal to 10% of the market value. So if your home has a market value of $100,000, your assessed value would be $10,000. It offers a homestead exemption on the first $7,500 of the value of a person’s primary residence (does not apply to city taxes). We have taken the median home value as an assessed value without any exceptions.

Median Home Value: $170,388 (Assessed Value)
State Income Tax Rate: 2% – 6%
Avg. Effective property tax rate: 0.52%
Annual Property Taxes: $886

5. Texas

The average effective property tax rate in Texas is 1.83%, well above the national average of 1.08%. A property appraisal is done annually by county appraisal districts. Tax payments are based on the current market value of a property. However, some exemptions help lower property taxes in Texas. Most popular are homestead exemptions which reduce property taxes for all homeowners by removing part of their home's value from taxation. Only a homeowner's principal residence qualifies for it. It exempts at least $25,000 (for school districts) of a property’s value from taxation. We have taken the median home value as the current market value with Homestead Exemptions of $25,000.

Median Home Value: $211,199
State Income Tax Rate: 0%
Avg. Effective Property Tax Rate: 1.83%
Homestead Exemptions: $25,000
Annual Property Taxes: $3,407

You can also click on this link to read our blog on how to be a successful real estate investor. This blog will teach you how to succeed in your first real estate investment, going with a moderate pace, learning much, and being ready to leave any enticing opportunity that comes your way.

REFERENCES

Median home values
https://www.zillow.com

Effective tax rates
https://smartasset.com

Tax advantages
https://www.investopedia.com/articles/investing/060815/how-rental-property-depreciation-works.asp
https://www.fool.com/millionacres/taxes/real-estate-tax-deductions/top-5-tax-advantages-real-estate-investing
https://www.usatoday.com/story/money/personalfinance/2017/04/16/comparing-average-property-taxes-all-50-states-and-dc/100314754

How to take advantage or maximize tax benefits
https://www.moneycrashers.com/lower-taxes-real-estate-investor
https://www.homeunion.com/how-to-claim-real-estate-taxes-and-deductions
https://smallbusiness.chron.com/calculate-value-investment-property-4122.html
https://finance.zacks.com/much-spend-investment-property-vs-potential-rental-income-10487.html

1031 Exchange Rules 2023: How To Do A 1031 Exchange?

May 18, 2023 by Marco Santarelli

1031 Exchange Rules

Are you a real estate investor looking to defer taxes on the sale of your property? A 1031 exchange might be the solution for you! In this guide, we'll go over the 1031 exchange rules for 2023 and how you can successfully navigate the process to maximize your returns. Let's get started! Taxes rarely make for exciting reading material, but if you own an investment property, there’s at least one set of IRS regulations you absolutely will want to understand: 1031 Exchange Rules.

Real estate investors like you have the option of using a 1031 Exchange. Most investors find it to be a useful instrument for reducing capital gains and other taxes on their earnings. Why? Because normally when you sell an investment property for more than what you paid for it, you’d have to pay a hefty capital gains tax. But with a 1031 Exchange, you get to defer paying those taxes if you reinvest the proceeds in a new property, making an “exchange” rather than a sale.

As an investor, you can benefit from deferring the tax liability associated with the sale of real estate through a 1031 exchange. However, there are strict regulations and guidelines to be aware of that dictate what constitutes a valid exchange. Several rules need to be followed while doing a 1031 exchange. Rules related to tax implications and time frames may be problematic. If you're considering a 1031 exchange, here is what you should know about all the rules.

If you decide to do a 1031 exchange, once the money from the sale of your first property comes through, it will be held in escrow—an independent account monitored by a third party. You won’t be able to access the money until you close on a new property. Note that you're not allowed to use the money from the 1031 property exchange for anything else.

You can't sell two commercial 1031 Exchange properties, do two quick fixes and flips, and then roll the proceeds into a new apartment building. The money from the first transaction will be held by a qualified intermediary who acquires the replacement property for the taxpayer. And this is fine, provided you follow a few more rules.

Here are the important 1031 Exchange rules and regulations to be mindful of:

1. Like-kind Properties Rule

1031 exchanges must be done with like-kind properties. The rules for like-kind properties have evolved over the rules. In 1984, Section 1031 of the tax code was changed so that the definition of like-kind was dramatically expanded. You now had the option to sell a rental house and buy a small apartment building. Before the rule change, you didn't just have to trade a house for a house but a three-story apartment building for a three-story apartment building.

The properties don't have to be in the same sector. For example, you could sell an apartment building and invest the proceeds in an industrial building. International and domestic properties are not “like-kind” 1031 exchange properties, either. Yet you can use almost any property in the United States for a 1031 exchange. However, it is very important that if you cannot find the right property to reinvest the proceeds, don’t do a 1031 exchange. You should avoid buying the wrong property at the wrong time in the housing cycle.

2. Three-Property Rule

You can identify up to three potential properties to buy as long as you close on at least one of them. The federal government limits the rollover process to up to three properties. Most investors limit themselves to up to three properties to avoid being subject to more complex tests or simply minimizing the necessary paperwork.

3. 200% Rule

You can identify any number of replacement properties you want to purchase so long as their eventual combined fair market value isn’t more than 200% of your relinquished property. So let’s say you sell a property for $500,000. The combined market value of your purchase should be no more than twice that, or $1 million.

4. 95% Rule

You can ignore the 200% rule and identify any number of potential replacement properties for any amount as long as you buy 95% of the aggregate value of those properties. So if you sold a property for $500,000, you could identify five properties worth a total of $2,500,000. But you’d then have to buy at least $2,375,000 (that’s 95%) worth of those properties.

5. 45-Day Time Limit to Find a 1031 Exchange Property

The 1031 exchange used to have to be done nearly simultaneously. This caused a variety of problems because it can be hard to transfer titles and funds in a short period. However, the current 1031 exchange process still has a time limit. There is a strict 45-day time limit.

You must either close on or identify and report on the potential replacement property within 45 days of selling the original property. This time period includes weekends and holidays. If you pass that time limit, the entire exchange is disqualified. The IRS won't interfere in the purchase of the new property. However, you'll owe taxes on the sale of the old one.

6. 180 Days For the Transfer to Complete

After the sale, the clock starts ticking for you to find that new property: You have 45 days to identify a new property (or properties) you want to buy. Once the replacement property is selected, the investor has 180 days from the date the original property was sold to close on the replacement property. Since closing on a property can take time and is often unpredictable, many investors choose more than one property to buy with the hopes that at least one of them will come through.

7. Personal Residences Don't Count as 1031 Exchange Properties

You can't sell your personal residence and use part of the money to buy a rental. A general rule of thumb is that you can't use a 1031 exchange if you lived in it for at least two of the past five years. Vacation homes and second homes typically don't count, either. Paragraph 280 of section 1031 outlines the usage test that can be used to determine if a vacation home you rent out periodically can be included among 1031 Exchange properties.

8. Fix and Flip Properties Don't Count as 1031 Exchange Properties

To qualify for a 1031 exchange, both the new and old properties have to be held as an investment or used in a trade or business. Held for investment means holding the property for future appreciation. Used in a trade or business means income-producing, such as used in a business or used as a rental property. A fix-and-flip kind of property is regarded as property held for sale. You may be able to count it as a 1031 exchange if you end up renting it out for a few months before selling it to an investor.

9. Land that you're developing is not qualified for tax-deferred treatment under section 1031 of the tax code, though raw land might

A 1031 exchange can include build-to-suit exchanges, but the construction and property improvements must be completed by the 180-day time limit. In general, your interest in a partnership doesn't count under section 1031. If you receive non-like-kind property like liabilities or cash equivalents, this could result in a tax bill. After 2018, the 1031 exchange could only include real property. Yet the exchange can include money such as proceeds after a mortgage is paid off.

What is an IRS 1031 Exchange?

Property owners may exchange real estate held for investment for another property of like-kind and so long as the properties are held for investment, all real estate is deemed to be like-kind. If the transaction qualifies, any realized capital gains are deferred until the replacement property is sold at a later date. Many investors would like to do a 1031 exchange. Some of them who do fix and flip call us for a 1031 exchange to roll the gain over into the next property. But can they?

Although confusing, understanding IRS Code Section 1031 is worth it. It’s just that this transaction is subject to some strict regulations, so you’ll need to follow the 1031 exchange rules to the letter. For example, an exchange can only be made with like-kind properties, and IRS rules limit use with vacation properties. Another common misconception is that property sold in a particular state must be replaced by a property in the same state.

But that's not true as the “like-kind” requirement is very general and allows for the property owner to acquire property outside of his state should they wish to do so. However, some complications can arise where multiple states are involved. For example, California has a “clawback” requirement for California investment property sold in a 1031 exchange and subsequently replaced with a non-California investment property per California FTB Publication 1100 Irev 2007, section F.

Any capital gains accrued on California real estate will be subject to California tax upon the ultimate sale of the real property even if the investor had sold his or her California real estate and subsequently 1031 Exchanged into investment property located outside of California. Therefore, if the replacement property is out-of-state, California aggressively tracks when the replacement is ultimately sold.

When the replacement property is sold, California treats the gain as California source income to the extent of the original deferred gain. That is so even if you no longer live in California and if you are selling the non-California property twenty years later. Several other states follow this rule, but California may be the most aggressive in enforcing it. So what's the drawback?

The “clawback” provision can affect you negatively when you try to exchange out of California's stringent tax system into a friendlier state tax system such as Nevada or Texas as both of these have no state income tax. Here’s all the more you need to understand and execute a 1031 Exchange process successfully in 2021.

A 1031 Exchange is an incredibly useful tool for many real estate investors. It is an exchange of two (or more) pieces of real estate under Section 1031 of the tax code. A simple definition of 1031 exchange properties is the property being sold and the property being purchased under Section 1031 of the tax code. In the simplest case, you're swapping one property for another.

Internal Revenue Code Section 1031 allows individuals and entities to “exchange” investment property or other property that is held for productive use in a business or trade but not primarily for sale. The IRS Code Section 1.1031 states that no gain or loss is recognized if property held for productive use in a trade or business or investment is exchanged solely for property of a like kind to be held either for productive use in a trade or business or investment.

The important words are property and held. “Property” refers to real property while “held” means the time when the property is used in the productive use of a business or investment. The shorter the time held, the greater the facts need to be to substantiate that the property is used for the proper intent rather than for a flip or profit. Properties that do not come under 1031 consideration include primary residence, inventory, partnership interests, indebtedness, stocks, securities, and notes.

1031 exchange can come with high legal fees and strict limits. However, this is often worth it, given the great benefits of a 1031 exchange. This explains why the 1031 exchange is used by businesses to “move up” in buildings, selling their existing ones to buy a larger facility with minimal taxes. Although a 1031 exchange process is complex it is one of the best tax advantages real estate investors have at their disposal.

There are several initial steps to a successful 1031 exchange process. For example, you'll want to find a qualified intermediary before you sell the property. Then there is the process of listing the property you want to sell. The first step in the 1031 exchange is selling the first property. It is advisable to have potential replacement properties identified at this point.

However, you don't have to close on these properties immediately. If the 1031 exchange properties cannot be closed simultaneously, the money must be held by a qualified intermediary. This means the taxpayer doesn't receive the money from the sale of the first property.

The second step in a 1031 exchange is formally identifying your replacement property. This must be done within 45 days of the sale date of the first property. Ideally, you'd have begun the purchase process.

The third step of the 1031 exchange process is to complete the purchase of the replacement process including payment and retitling of the property. The facilitator will hold the cash from the sale of the first property and send it to the seller of the replacement property. Then the 1031 exchange is treated as a swap by the IRS and considered done once you fill out the IRS form.

In general, you have 180 days from start to finish. However, you may have to do so even faster. For example, you generally have to complete the process before you file your tax return claiming the 1031 exchange. This means you'll want to complete the 1031 exchange started last tax year before you file your tax return the following April.

If you acquire the replacement property before the first one sells, this is called a reverse exchange. The property must be held by an exchange accommodation titleholder. This could be a qualified intermediary. You'll get the title transferred to you when the first property sells.

What happens if there is money left over after the new property has been purchased? Maybe the new property costs less than you expected after all costs are taken into account. Or you didn't use all of the money toward the purchase of a new property. A tax penalty will be owed, but it is typically only for the amount that wasn't rolled over into the new property.

What Are The Four Types of 1031 Exchanges?

Simultaneous 1031 Exchange

The simultaneous exchange is defined by having the 1031 exchange happen on the same day. It was also the original form of the 1031 exchange until updates to tax law made the others possible. There are several ways the simultaneous exchange may happen. You might have a two-party trade.

In this case, two parties exchange or swap deeds. In a three-party exchange, an accommodating party facilitates the exchange by transferring ownership between the parties so they close on the same day. Another option is using a qualified intermediary who handles the entire exchange.

Delayed 1031 Exchange

The delayed exchange is one where you sell a property one day, receive the money, and buy the property after a delay. It could be anywhere from one day to several months before acquiring the replacement property. If you don't buy replacement property within the time limits set by the IRS, you will have to pay capital gains on the proceeds from the original property sale. The money from the initial sale must be held by a third-party “exchange intermediary”.

This third party may also be called a Single Purpose Entity. The 180-day time limit starts the day you execute the sale and purchase agreement for the first property. However, you have 45 days to identify a new piece of real estate and you have 180 days to complete the transaction. Fortunately, this gives you several months to negotiate the purchase price, arrange for the seller to make repairs, and perform a proper title search.

Improvement 1031 Exchange

An improvement exchange or construction exchange lets you improve on the replacement property using tax-deferred dollars, though the money is held by a qualified intermediary. There are several requirements you must meet if you want to defer all of the gains from the sale of the relinquished property.

First, all of the exchange equity must be used as either a down payment on the new property or spent on completed improvements. You'll run into problems if the work isn't completed within 180 days. And remember that this 180-day time frame includes the time spent shopping for replacement property and planning the renovations. The SPE theoretically is the one making the renovations or at least paying for them.

Second, the construction or improvement exchange requires having “substantially the same property” that you identified by day 45 of the 1031 exchange timeline. The replacement property must end up with the same or greater value when it is deed back to the taxpayer. This approach allows you to buy a fixer-upper and make renovations within the 1031 exchange rules, but it requires careful project planning.

In theory, it allows you to buy land and build something, but that is not recommended due to the heavy tax bill you'll face if you're wrong. However, the like-kind rules are so liberal you could sell a rental house and buy a strip mall or sell raw land in an urban area and buy a ranch. However, if you sell property inside the United States, the replacement property must be within the U.S. as well.

Note that properties must be considered like-kind for the 1031 exchange to be approved. As a property investor, this means you can use a 1031 exchange to upgrade from a single-family home rental property to a triplex. And you can upgrade from the triplex to a 20-unit apartment building. There is no limit to how many times you do a 1031 exchange. Nor is there a limit to how frequently you do 1031 exchanges, only the time frame for the 1031 exchanges themselves.

You could avoid paying capital gains taxes as you continually roll over gains from one piece of property to another until you eventually sell for cash. What happens if you sell improved land (with buildings) for unimproved land? The depreciation for the buildings on unimproved land may be recaptured as ordinary income and taxed as such, though you may avoid general capital gains. This is why you must have a professional guide you through this process.

Reverse 1031 Exchange

A reverse exchange can be described as buying first and exchanging later. In this case, you're buying the “replacement” or upgraded property first. Then you arrange for the sale of the second property. In the interim, the “relinquished” property is held by a Single Purpose Entity or SPE. Reverse exchanges are not very common, because they have to be all-cash deals. After all, you don't have the equity from the first property available to pay for part or all of the second property.

Banks won't lend you money for a reverse 1031 exchange. In contrast, they'll be thrilled to loan you money to buy a stepped-up piece of property because of how much equity you'll have in it. In a standard 1031 exchange, you run into problems if you have money but not the second property. With a reverse exchange, you'll run into problems if you don't relinquish the original property within 180 days.

However, the same time frames apply to a reverse exchange as the conventional 1031 exchange. You have 45 days to identify the “relinquished” property you're going to sell and report it to the IRS. You have 180 total days to complete the sale and complete the reverse exchange with the replacement property.

How To Do A 1031 Exchange?

Step 1: Decide to Do a 1031 Exchange

Remember that not every real estate deal is suitable for a 1031 exchange. The IRS put strict limits on the use of the 1031 exchange on vacation properties. A 1031 exchange cannot involve your personal property or primary residence. This means you can't use the 1031 exchange to eliminate the capital gains you may owe if you sell your family home for a significant profit. In theory, you can turn it into a rental and then exchange it, but the rules require you to meet very specific conditions, and we don't recommend it. In practice, the 1031 exchange only applies to investment properties like apartment buildings or commercial real estate.

Step 2: List the Property

List the property for sale. You may want to include language in the listing paperwork that says you want to do a 1031 exchange. This informs them of the fact that you have deadlines to meet. And it saves you from dealing with people who stretch out the purchase process because they're evaluating multiple properties.

Step 3: Start Looking for the Replacement Property

You could have identified several potential replacement properties after you decided to perform a 1031 exchange. However, you must formally identify one by day 45 after the relinquished property is sold. That's why we recommend looking for a replacement property while the current one is up for sale. The typical replacement property costs somewhat more than the one you're selling, because you may owe capital gains taxes if you end up keeping some of the proceeds of the property sale.

Step 4: Choose a Qualified Intermediary

You need a qualified intermediary in place to receive the money from the sale of property 1 before you can buy property 2 under the 1031 exchange. Only work with a professional experienced with 1031 exchanges. IRS laws explicitly state that you are not allowed to use your attorney, employee, accountant, real estate agent, or relative as the qualified intermediary. What is the qualified intermediary's role? If they receive the profits from the sale and roll it over into a new property, you never received the money. And you probably can't be charged income tax or capital gains taxes on it.

Step 5: Complete the Sale

The purchase agreement the buyer signs must clearly state that a 1031 exchange is taking place. This information will affect everything from assignments to disclosures. Like standard real estate deals, you'll have a title company and/or lawyer involved in the closing. Unlike other real estate transactions, the money from the sale will be transferred into the qualified intermediary's bank account, not yours.

Step 6: Identify Replacement Properties

You can identify up to three replacement properties within 45 days. The IRS gets notified via IRS Form 8824. You can in theory close on more properties if you close on at least 95 percent of them or the identified properties have a combined value of less than 200 percent of the sold property. In this regard, you could sell a 500,000-dollar house and buy four 250,000-dollar houses.

You've bought smaller properties, but you still get to take advantage of the 1031 exchange because it has a higher total dollar value than what you sold. Most 1031 exchanges involve buying a property that is a step up. By identifying several replacement properties such as apartment buildings, you ensure that you remain within the rules if your first choice falls through.

Step 7: Begin the Purchase Process

Sign a contract for your identified properties. We'd recommend having contingency clauses that let you back out on the other properties if the first deal goes through. Negotiate the purchase of the property, while your qualified intermediary works with the title company. An experienced intermediary is familiar with it.

Step 8: Close on the Replacement Property

When you close on the replacement property, the intermediary sends your money to the seller's attorney or their title company. The closing process will then proceed like any other. Yet you've avoided the associated capital gains taxes.

When To Do a 1031 Exchange & Its Benefits?

The 1031 Exchange allows you (as an investor) to postpone paying capital gains taxes on the sale of investment property. Taxes on capital gains might be as high as 20-30% in a typical sale. Those taxes, however, can be avoided if the proceeds of the sale are reinvested according to the rules outlined in IRC 1031. You can leverage funds otherwise needed to pay capital gains taxes to acquire more desirable property. As the name implies, a 1031 Exchange is a swap of one investment property for a like-kind property instead of a traditional sale.

The primary reason to execute a 1031 exchange is to reinvest capital into investments that are greater in scale, more diverse, or more aligned with your current investment strategy. And because taxes are deferred, more of the sale proceeds can be immediately directed toward your new investment. A 1031 tax-deferred exchange allows you to roll over money from a recently sold investment property into another property.

You're able to defer capital gains taxes on the property's sale. This tax rate will range from 15 to 30 percent. Suppose you own a rental house. Sell that property and use the money to buy two more rental houses. You've avoided a capital gains tax bill on the profit for that property, and you've used it to buy two more.

Section 1031 Exchanges offer a great opportunity to diversify assets, whether by diversifying into another geographic region or simply from one property type to another. You can continue growing your portfolio over the years. You could continue to buy rental houses, or you could sell the properties and buy an apartment building. The 1031 exchange rules will let you roll the capital gains for 10 houses into a large multi-family project. You could in theory continue this until your death, potentially avoiding capital gains taxes until your estate has to deal with it.

Another benefit of a 1031 exchange is that it resets the depreciation clock. You'll be able to buy a new property and take advantage of depreciation to offset your income. This can add up if you're selling a property that you've held for more than two decades. If you sell an investment property for more than its depreciated value, you will probably have to recapture the depreciation.

This normally results in the amount of depreciation included in your taxable income. A 1031 exchange avoids taxes on this amount that may exceed the official capital gains.

When do people want to do a 1031 property exchange?

The most common situation is when you want to avoid paying capital gains on the sale of a property. It may be done when you're consolidating your real estate portfolio, selling multiple properties to invest in a single larger building. Or it may be done when you're liquidating one property and investing in several more.

Also, if you have invested in properties that are low-income and high-maintenance, you could exchange the high-maintenance investment for a low-maintenance investment without needing to pay a significant amount of taxes. Or perhaps you want to move your investments from one location to another without the IRS knocking at your door.

Is 1031 Exchange Possible When There Are Losses Involved?

The goal of 1031 property exchanges is to avoid paying capital gains taxes on the sale of the property. In most cases, the 1031 exchange properties have a greater value than the one that was just sold. This may involve a more expensive home or a larger, multi-family unit. However, a 1031 exchange is possible when there are losses involved. Section 1031(b) specifically addresses cases where the transaction results in a loss.

The financial loss is not recognized at the time of the transaction. Instead, it is carried forward as part of a higher basis on the property you've received. Note that you can sell a property that you're losing money on and roll the money into a new property as part of a 1031 exchange. The full benefit requires the replacement property to be of equal or greater value than the one you're selling.

And if you're selling a flooded house or property where the tenant isn't paying the rent, almost anything you buy is a step up. If you are trading down in the property, you may get a “boot” in the form of debt reduction. Other forms of “boot” include prorated rent, utility escrow charges, service costs other than closing costs, and deposits transferred to the property buyer.

That money can be offset with cash used to purchase the replacement property. The boot used to include non-like-kind property including livestock, industrial equipment, and vehicles. This means you can't count the value of animals on a farm or equipment in a factory towards either losses or gains in a 1031 exchange.

Consult with a tax professional to understand your options for avoiding a capital gains tax bill if you receive money like this. The Tax Cuts and Jobs Act of 2017 mitigated losses of 1031 exchanges by giving taxpayers the ability to immediately deduct certain expenditures. This might be classified as either a “bonus deprecation” or a business expense.

Here is An Example To Understand This Type of 1031 Exchange

Before you make any decisions, you must know the “adjusted basis” of your property. As the term implies, over time you adjust the basis of a property. If the “adjusted basis” is less than what the property is sold for, then we have a “total gain”. If the adjusted “tax basis” is more than what we sell the property for we have a true loss in the eyes of the IRS.

The adjusted basis is calculated by taking the original cost, adding the cost for improvements and related expenses, and subtracting any deductions taken for depreciation and depletion. Suppose you buy a $150,000 home. When determining the basis, start with this $150,000 and add any associated fees such as real estate taxes the seller owed that you paid as part of the transaction.

This figure is your basis. To get your adjusted basis, add or subtract any associated costs or credits. For example, if you invested $50,000 in home renovations, add this $50,000 to the basis to get an adjusted basis of $200,000. If you had storm damage to your home and had to pay $5,000 for roof repairs, add this amount to get an adjusted basis of $205,000.

If you do a 1031 exchange, all the total gain, including the tax on recaptured depreciation, will be deferred. If you exchange property with a true loss, then the loss amount is added to the basis of the replacement property. A simple example would be if you had a vacation area lot that cost us $200,000 that we sold for $100,000 and exchanged for a $100,000 lot close to your home.

You would have a $100,000 loss in the eyes of the IRS and would add your loss to the new basis of your replacement property. Because of the exchange, the new lot would have a starting basis of
$200,000, even though you only paid $100,000 for the lot.

While these rules are complicated, they must be followed—there are no exceptions or extensions. If you mess up, the IRS could decide you don’t qualify for a 1031 exchange and send you a huge tax bill. So make sure you know how it works. If you’re in doubt, consult an accountant or real estate agent for more details. For more information on 1031 exchanges, go to IRS.gov.

More Examples To Understand a 1031 Exchange Process

Maybe the new property costs less than you expected after all costs are taken into account. Or you didn't use all of the money toward the purchase of a new property. A tax penalty will be owed, but it is typically only for the amount that wasn't rolled over into the new property.

Let's look at a few examples to understand what this means in practical terms. In the classic swap, you sell a rental property you bought for 150,000 dollars for 200,000 dollars and roll over the money into a 300,000-dollar duplex. While you'll owe closing costs, legal fees, and a few other expenses out of pocket, you avoid paying capital gains taxes on the 50,000 profit. That would result in a 5,000 to 10,000 capital gains tax bill depending on where you live.

What happens if you have a property you're going to take losses on? You bought a beach house at the peak of the market a decade ago for half a million dollars. You've maintained it but haven't taken steps to increase its value. The area is in decline, so the property is only worth 400,000 dollars. Then you finally get a good offer. Someone is offering you 450,000 dollars for the property.

From your perspective, this is a loss. From the government's perspective, you'll owe taxes on the 50,000 gain including the recaptured depreciation. If you do a 1031 exchange when selling this property, the theoretical gain and recaptured depreciation are deferred.

Who Qualifies For a 1031 exchange?

Here are the basic requirements according to Los Angeles accountant Harlan Levinson:

The homes must be investment properties. This transaction is not for regular homeowners who live in the home they’re selling (or buying). Both homes in question must be investments, whether you plan to (or did) rent it out to tenants or flip it after renovations.

The home you buy must be worth more than the one you sell. People benefit from a 1031 exchange only when the property they buy is of equal or greater value than the one they’re selling—in other words, they’re trading up. For instance, maybe you bought a quaint summer cottage rental, but you want to cash that in for a larger mansion on the beach, or a duplex where you can rake in rental money from two families rather than one. If you intend to pay less for a new property, you’ll pay taxes on the difference.

Conclusion

A 1031 exchange allows real estate investors to grow their wealth more quickly because they avoid a hefty tax bill every time they reinvest the proceeds of a property sale. That is why it is a powerful tool for those who want to grow their portfolio. The savings of the 1031 exchange are so substantial that it is used by businesses and real estate investors alike to save money. The biggest reasons why people don't take advantage of them are because they either want to reduce their exposure to real estate or can't find a good replacement property in time.

So, next time you decide to do a 1031 exchange, you must keep in mind all these things to complete the process successfully:

Purchase another property of equal or greater value.
It has to be a like-kind property.
Everything has to be completed during the specified exchange period by a 1031 exchange.

Before you begin this process, you should thoroughly comprehend the process and its guidelines. We also advocate working with a 1031 Exchange specialist broker or property manager. Many investors are big fans of the 1031 exchange. It's a straightforward and effective investment tool to save serious money. But, it's not perfect. It also comes at a price. You need to be prepared to deal with the potential downside of a transaction like this.

References

What is a 1031 Exchange?
https://en.wikipedia.org/wiki/Internal_Revenue_Code_section_1031
https://fundrise.com/education/blog-posts/opportunity-fund-1031-exchange-tax-advantages-for-real-estate-investors
https://www.govinfo.gov/content/pkg/CFR-2011-title26-vol11/pdf/CFR-2011-title26-vol11-part1-subjectgroup-id46.pdf

When to do a 1031 Exchange & what are the benefits?
https://www.thebalance.com/how-to-do-1031-exchanges-1798717
https://www.cwscapital.com/what-is-a-1031-exchange/

The Rules for a 1031 Exchange
https://www.1031.us/PDF/1031ExchangeIfSellAtALoss.pdf
https://www.law.com/newyorklawjournal/2020/06/23/proposed-regulations-for-section-1031-exchanges/
https://www.irs.gov/businesses/small-businesses-self-employed/like-kind-exchanges-real-estate-tax-tips

How to Do a 1031 Exchange?
https://www.fool.com/millionacres/taxes/1031-exchanges/
https://www.biggerpockets.com/blog/step-by-step-1031-exchange
https://www.buildium.com/blog/what-is-a-1031-exchange/
https://www.thestreet.com/personal-finance/real-estate/what-is-a-1031-exchange-14881004

New 2018 Tax Law Impact on Real Estate Owners

December 27, 2017 by Marco Santarelli

Congress has approved sweeping tax cuts and tax reform that have not been tackled by the federal government in over 30 years (since the Tax Reform Act of 1986.). The new tax law, formally referred to as “The Tax Cuts and Jobs Act,” will go into effect on January 1, 2018.

This article has the most up-to-date information along with a summary of how the new tax law provisions will affect homeowners and real estate investors who own all types of investment property. Although this article generally does not delve into tax issues not associated with real estate, there are many new tax provisions and this is essential information for anyone that owns real estate to understand.

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