Posted almost 4 years ago

Held for Investment: 1031 Exchange Series Part Two

In the first part of our seven-part series on 1031 exchange basics, we discussed the six basic requirements. The first of those six requirements state that the real estate must be held for investment. In this, the second part of our series, we will discuss what held for investment means, what property qualifies, and how the holding period can be determined.

Held for Investment

This requirement states that in order to qualify for a 1031 exchange, the real estate must be held for investment. It’s vital to remember that this is different from section 121, which refers to your primary residence. With a 1031 exchange, we’re discussing investment real estate. That means we’re not concerned with the type of property as much as the use of it. Overall, the use of the real estate is what’s most important.

There are three different types of uses that qualify under the held for investment rule. This includes uses for trade, business, or investment. You can read more about each of them below.

Trade
This means that you are holding the real estate for productive use in trade. For example, this could be a factory where you store or produce clothing if you’re a retail designer. If you work as a plumber, this could be a building where you keep items that you need for your trade such as toilets or pipes.
Business
Holding real estate for business purposes covers properties that you generate income off of. This may be an apartment complex that you rent out to tenants. It could also be a shopping center where you lease out space to businesses.
Investment
The final use that qualifies under the held for investment requirement is holding the property for investment purposes. This means you’re trying to garner the incremental increase in value as it relates to a factor over time. To put it simply, you bought the real estate to hold it while it appreciates or increases in value over time

Investment versus Inventory

Most of us don’t think of real estate as inventory. But, this is an important concept to understand when dealing with IRS rules and regulations regarding 1031 exchanges.

While we spoke about investment property above, it’s important to note the mention of appreciation as an increase in value over time. This is a critical factor in separating investment from inventory.

You cannot purchase a property for $50,000, fix it up, and promptly sell it for $100,000 and defer the tax with a 1031 exchange. In this case, the IRS considers such flipped property as inventory. Since you purchased it with the intent to simply turn around and resell it at a profit, it does not qualify for a 1031 exchange.

However, if you purchased the property at $100,000, fair market value, and a few years later it’s worth $200,000, that is appreciation. By holding the property and allowing it to appreciate in value, it is considered investment real estate.

The first scenario does not qualify for a 1031 exchange but the second one does.

Property That Does Qualify

A 1031 exchange covers U.S. property for U.S. property with a few exceptions. These exceptions include the U.S. territories of Guam, American Samoa, and the U.S. Virgin Islands. For example, you could sell a property in the U.S. and buy a property in St. Thomas (in the U.S. Virgin Islands) and do a 1031 exchange. Even though Puerto Rico is a U.S. territory, you are unable to do an exchange between a U.S. property and one in Puerto Rico due to the way their commonwealth is setup. You are able to sell foreign real estate and buy foreign real estate using a 1031 exchange. However, if it is a U.S. property, only other U.S. properties or ones from Guam, American Samoa, and the U.S. Virgin Islands will qualify.

As a general rule of thumb, rental properties will always qualify since you are holding them to generate income. Raw land is also always an investment. This is because you’re investing in raw land, not because you expect to turn it for a quick profit. If it does happen to appreciate quickly, it’s up to you and your accountant to decide what the intent was when you bought it.

Examples of Held for Investment Exchanges

To understand this a little better, let’s look at an example. Let’s say you purchased a piece of raw land at an auction. Then, three months later, you are able to sell that land for three times the amount you bought it for. Would this qualify for a 1031 Exchange?

That depends. When you bought the land, did you know it was going to be worth that much more immediately? Did you buy the land primarily to resell it? If you answer yes to those questions, you would be flipping the land and therefore not eligible for a 1031 exchange.

But what if, as one of my clients experienced, you never put the land up for sale? What if you had already planted crops? Then, what if someone approached you and offered to buy the land? In this situation, my client clearly intended to hold the land for productive use. But then the local gas company identified his land as the perfect place for a distribution hub and made him an offer he couldn’t refuse. In this instance, he clearly intended to hold it for productive use so even though his intent changed and he sold it quickly, it still qualified for a 1031 exchange.

Another example would be if you owned a duplex that you bought a while back. Let’s say you now want to sell and go buy a vacation condo on the beach. You’re going to use the beach condo a little bit but you also want to rent it out. Can you do a 1031 exchange in this situation? Absolutely! This still qualifies as rental property that you intend to hold. Personal use does not disqualify it, although there are some IRS rules and regulations about that, too (https://www.biggerpockets.com/blog/vacation-home-1031-exchange).

Intent is Key for the Hold Period

Typically, the hold period that most investors use for 1031 exchanges is longer than twelve months. Now, there's no magic to that, because there is no statutory holding period. In the past, if you held property for more than twelve months, you would automatically qualify that property as a capital gain “long term”. If this property was sold with less than a year's ownership, you would pay ordinary income. However, that easier measure is no longer valid and it is very difficult to put a time period down now.

My best advice is that longer is better rather than shorter. This is because the keyword to the entire statue revolves around the single word of “intent”. You are going to sell property that it has been your intent to hold for productive use in trade, business, or investment. However, now you're going to purchase a new property that you intend to hold for productive use in trade, business, or investment. That's the basics of a 1031 Exchange.

There are two ways to demonstrate your intent to hold for investment as there is no statutory holding period. The first way is that longer is always better than shorter. The second way revolves around your past history. What have you've always done? Do you have a history of buying property and holding onto it and renting it? Then you've set up something to demonstrate what your intent is. And your established intent is key when satisfying the requirement that the property being exchanged is held for investment.