Adventures in Section 1031

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1 NYSBA Real Estate Section Advanced Real Estate Topics Adventures in Section 1031 Lana Kalickstein Roberts & Holland LLP December 12,

2 Acquisition of Property for $150 A (an individual) LLC 1 $100 Loan Tax basis (cost) =$150 FMV $150 (not dealer property) 2

3 Sale of Property for $500 A (an individual) LLC 1 $100 Loan Tax basis=20 FMV $500 3

4 Acquisition of Property by LLC1 for $150 Individual A LLC 2 B Corp Tax basis (cost) =$150 LLC 1 $100 Loan FMV $150 (not dealer property) 4

5 Sale of Property by LLC1 for $500 Individual A LLC 2 B Corp Tax basis=20 LLC 1 $100 Loan FMV $500 5

6 Gain = Amount Realized less Adjusted Basis Amount Realized = $500 ($400 cash + $100 debt relieved) Adjusted Basis = $20 ($150 cost basis - $130 depreciation deductions) Realized Gain = $480 Client would like to defer recognition of gain 6

7 Section 1031 (a)(1) No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment 7

8 I. Relinquished Property Questions to ask Client Who is the Taxpayer? What kind of property is being sold? real property leasehold interest vacant land/building dealer property? TIC interest? partnership interest doesn't qualify (swap and drop issue) How long has the property been held? What state is the property in? California, Form 38408

9 I. Relinquished Property (continued) Timing of Sale? Sales Price? Is there any debt on property? Will the loan be repaid/defeased? Assigned? Prepayment Penalties/Defeasance Fees? Anticipated closing costs? Breakdown? qualifying 1031 expenses Treas. Reg (k)- 1(g)(7) nonqualifying costs 9

10 I. Relinquished Property (continued) Has a purchase and sale contract been executed? Parties? Who is the Taxpayer in the exchange? Deposit? 1031 cooperation? Assignment allowed? Review credits/prorations/purchase price adjustments shown as credits Basis in relinquished property? Basis allocation between land and building? Treas. Reg (i)-6 10

11 I. Relinquished Property (continued) Calculation of realized gain? How much depreciation has been taken? 1245 Possible recapture gain recognized at time of acquisition, depending on how much depreciable property you buy Simple calculation with estimated numbers See how much gross you will need (after reducing by qualifying costs) See how much net you will need (after reducing adjusted gross by debt) Will there be any boot? Any taxable gain? Any cash needed from Taxpayer to pay nonqualifying expenses/prorations? How much? Will Taxpayer have cash available? 11

12 II. Replacement Property Options? What kind of property is being acquired? real property leasehold interest vacant land/building TIC interest partnership interest doesn't qualify (swap and drop issue) Holding purpose? Dealer property? What state is the property in? California, Form

13 II. Replacement Property Options? (continued) Timing? 45 days identification requirement 3 property rule or 200% rule specific identification TIC interests 180 days acquisition requirement Reverse exchange? Sales Price for replacement property? Will there be any debt on replacement property? Amount of debt? amount limited by requirement to match net is debt being assumed/taken subject to? new debt? 13

14 II. Replacement Property Options? (continued) Costs associated with new debt? Lender fees, lender legal fees, mortgage recording tax Anticipated closing costs? Breakdown? "qualifying 1031 expenses Treas. Reg (k)- 1(g)(7) nonqualifying costs Any cash needed from Taxpayer to pay nonqualifying expenses/prorations? How much? Will Taxpayer have cash available? 14

15 II. Replacement Property Options? (continued) Has a purchase and sale contract been executed? Parties? Is the contract with the correct taxpayer? Has a deposit been made? Where is it being held and under what conditions? 1031 cooperation language Assignment of contract language Review credits/prorations/purchase price adjustments shown as credits Related party seller? 1031(f) TIC Interests? Rev. Proc Lenders 15

16 II. Replacement Property Options? (continued) Calculation of recognized gain? How much depreciation has been taken? 1245 Possible recapture gain recognized at time of acquisition, depending how much depreciable property you buy Simple calculation using estimated numbers Will there be enough gross (including qualifying costs) Will there be enough net (reducing adjusted gross by debt) What will be the basis in replacement property? Basis allocation between land and building? Treas. Reg (i)-6 16

17 III. Mechanics of Deferred Exchange Legal fiction Treas. Reg (k)-1 Who is the qualified intermediary? qualifications, safety of investment QIs going bankrupt, cannot complete exchange Has an exchange agreement been executed? required language Has a qualified exchange trust agreement been executed? required language How will the funds be invested? Cannot get proceeds in exchange account back for 180 days/45 days if no identification 17

18 III. Mechanics of Deferred Exchange (continued) Has the Taxpayer assigned its rights to the relinquished property sales contract to the QI? Has the Taxpayer assigned its rights to the replacement property sales contract to the QI? Any cash needed from Taxpayer to pay nonqualifying expenses/prorations? How much? Will Taxpayer have cash available? 18

19 IV. Closing on Relinquished Property Review cash flow, flow of funds Review Closing statement QI is "Seller" Wire instructions of QI Deposit to QI Review for prorations, credits, qualifying 1031 costs, nonqualifying costs Do calculations Will there be any boot? Any taxable gain? Transfer Tax? 19

20 V. Identification of Replacement Property Was identification form sent to QI within 45 days? 3 property rule/200% rule precise description of property TIC interests Did correct Taxpayer sign identification form? 20

21 VI. Closing on Replacement Property Review cash flow, flow of funds Review Closing statement QI is "Buyer" Give wire instructions of closing agent to QI Return of Deposit to Taxpayer, Funding by QI Review for prorations, credits, qualifying 1031 costs, nonqualifying costs Transfer Tax? 21

22 Setting Up Deferred Exchange: Summary Who is the Taxpayer? Contract For Sale of Property (Deposit, Assignment, Timing) Choose QI Exchange Agreement, Assignment of Contract Closing on Sale of Relinquished Property Closing Statement Identification of Replacement Property Contract For Acquisition of Property (Deposit, Assignment) Closing on Purchase of Replacement Property Closing Statement Boot? 22

23 VII. Reverse Exchanges Rev. Proc Timing? Choosing an exchange accommodation titleholder (EAT) Source of Funds? Transfer Tax? Lender issues? 23

24 VIII. Income Tax Reporting 1. Form Form California Reporting 4. Basis Calculation 5. Depreciation 24

25 25

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