Business Management

1031 Exchange vs. Sale: Which Is Right for You?

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The 1031 exchange, also known as a like-kind exchange or a Starker, is a key tool used by real estate investors who hold property long-term (as opposed to flippers). At its core, the 1031 exchange allows investors to defer capital gains tax when “selling” a property.

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Many investors become serial exchangers, using this tool to help them build wealth as they replace older properties with more valuable ones, and defer tax liability in the process. In addition to the tax deferral benefit, there are several other advantages, as well as a few potential drawbacks, to the 1031.

In this article, I cover what I believe are the most important advantages and disadvantages and provide some food for thought about times you might want to sell as opposed to exchange. The wisdom in deciding to use a 1031 exchange will depend on your specific financial situation and goals, so always consult a tax professional before deciding if a 1031 exchange is right for you.

What Is a 1031 Exchange?

In general, a 1031 exchange is an exchange of real property used for business (or held as an investment solely for another business) for an investment property that is the same type, or “like-kind.” Properties are of like-kind if they’re of the same nature or character, even if they differ in grade or quality.

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What Are the Rules of a 1031 Exchange?

The range of property types included under the Internal Revenue Code Section 1031 was reduced with the passing of the Tax Cuts and Jobs Act. Only exchanges of real property currently qualify. However, the rules remain broad when it comes to the type of real properties allowed.

For example, real properties can be improved or unimproved. In some instances, you can even use a 1031 to exchange vacation homes, but there are many stipulations that must be met in order to do so. An exchange of real property held primarily for sale (think fix and flip) has never qualified as a like-kind exchange. The key condition here is that the property being exchanged (sold) must have been held for “investment” purposes.

There is no definition of what “investment purposes” is, but most industry professionals interpret this to mean that the property must have been held or owned for at least a year.

Related: How a 1031 Exchange Can Make You Millions

Pros of the 1031 Exchange

Tax Deferral

The main benefit of the 1031 exchange is the ability to defer or limit your tax liability when you “sell” a property. When you exchange instead of sell, you can avoid paying capital gains tax at the time of the transaction. By avoiding the tax hit, investors can grow their wealth faster because the all of the sales proceeds can go towards purchasing a larger or more valuable property.

No Tax Liability Upon Death

Another benefit of the 1031 exchange is that the deferred taxes owed to the IRS are erased upon death. A common investment strategy is to use multiple 1031 exchanges to purchase many more valuable properties throughout an investor’s lifetime. This allows investors to grow their wealth tax-free. Upon their passing, their heirs receive the property at what’s called a stepped-up basis equal to the fair market value of the property at the time of death and no capital gains tax to pay.

No Limits

There is no limit to the number or frequency of 1031 exchanges allowed.

Cons of the 1031 Exchange

While there are benefits to using a 1031 exchange, they also come with a few potential drawbacks. To use a 1031 exchange successfully, investors must be aware of, and adhere to, some extremely strict rules.

Qualified Intermediary Required

When doing a delayed exchange (and the vast majority of exchanges are delayed), a qualified intermediary must be used to handle all the paperwork and hold the sale proceeds during the exchange period. Investors cannot take possession of the proceeds and still qualify for the tax deferral.

Strict Timeframes

There are also strict timeframes that must be met:

  • 45 days to identify up to three properties to purchase
  • 180 days to acquire one of the three properties
    • Note that the two time periods run concurrently. If you take 30 days to identify your replacement property, you’ll only have 150 days to close.

Severe Repercussions If a 1031 Exchange Fails

If you’ve completed a number of successful exchanges and the most recent one fails, the proceeds are returned to you. Capital gains tax on that exchange, as well as part or all of the deferred taxes from previous exchanges, will be owed.

Related: 3 Common Mistakes Investors Make in a 1031 Exchange

No Access to the Cash

When you complete an exchange, you do not take ownership of or have access to any of the cash from the proceeds.

Failing to Consider Loans

If your liability goes down as a result of the exchange, the IRS will consider that debt reduction as income with the associated tax liability.

Questions to Ask When Deciding Whether to Sell or Exchange

When faced with the decision to exchange or sell, it is important to look at the big picture. Sure, a tax deferral always sounds great, but it shouldn’t be the only factor under consideration. Here are a few other things to carefully think about before making your final decision.

What Is Your Potential Tax Liability?

At face value, it always sounds better to defer/avoid paying taxes, but you should know what your potential tax liability will be if you were to sell the property. You might be surprised—it could be tolerable or even acceptable.

How Badly Do You Need the Cash?

Sometimes life happens, and you just need the cash.

Are There Any Sticky Legal Entity Issues?

If the property to be sold was purchased through a legal entity (an LLC, for example), that same legal entity must purchase the replacement property. If all members of the entity cannot agree on what is to be done, the most expedient course might be to sell and distribute the funds.

Note that exceptions apply to legal entities structured as Tenants-in-Common (TIC) or as a Delaware Statutory Trust (DST), both of which allow for multiple partners/members to conduct a 1031 exchange individually without being tied to the group.

Do You Have a Loss That Can Be Offset?

If you have a net operating loss or passive activity loss that is expiring soon, it might make more sense to sell rather than exchange. You may be able to (at least partially) offset the gain by the tax losses.

What Is Your Capacity?

Do your current life priorities allow you enough bandwidth to find replacement properties and move swiftly to close within the required 180 days? Can you identify good properties for the exchange within the allotted 45 days?

If you can’t find a replacement property that stands alone as a good investment, it may be better to sell and take the tax hit. Why saddle yourself with a dog?

Conclusion

There are many pros and a few cons to 1031 exchanges. Successful 1031s can be a powerful tool for building wealth through real estate. But there are strict requirements and a few pitfalls to be aware of—especially for those new to 1031 exchanges. Be sure to work with qualified professionals to ensure all the rules are being followed and the exchange fits with your current tax situation.

Questions? Comments? 

Let’s discuss in the comment section below!

Ian Colville is the Managing Partner of CCM Finance. Ian is a native of Minnesota (born in Rochester). He brings both a formal education (BA in Economics and MBA) as well as industry experience to CCM Finance. Ian is passionate about the many opportunities that real estate investments offer for both short-term and long-term financial gains. He is committed to helping local real estate investors turn those opportunities into profits. When not doing real estate deals Ian enjoys – well mostly he enjoys working on real estate deals. But if he does break away he is likely spending time with family or at the gym. Find out more about CCM-Finance and Ian here.

    Chad Matthews Rental Property Investor from Philomath, OR
    Replied 13 days ago
    Hey Ian ... check out my locale ... Philomath, OR. A little town a few thousand people, and also home to the Starker family - This family of foresters fought for the 1031 exchange that we all know and love today. Is there a "right" time to sell and exchange? (i.e. when appreciation and depreciation meet a certain point?)
    M. Ian Colville Lender from Minneapolis, MN
    Replied 13 days ago
    @Chad - thanks for the question and interesting geography! An accountant might be able to give you a more technical answer on the “right” time question but I can say that I’ve never seen anyone make an exchange decision based on an accounting nuance Usually the exchange happens for much bigger reasons that are unique to the specific investor. For instance, we’re buying 41 houses right now from an owner who will exchange the proceeds in to a single apartment building that will be much easier for his team to manage. I think his motivation to sell was more based on being “done” keeping track of 41 separate structures but not wanting to pay taxes at exit. There are probably as many different stories like this as these are exchanges happening!