When completing a §1031 exchange there are some little-known requirements that could potentially disqualify your tax-deferred transaction. Here are a few that could put your exchange at risk.
Qualified Intermediary Selection
Someone who is acting as your agent at the time of the transaction is disqualified from acting as a Qualified Intermediary. Who is considered an agent? Someone who has acted as your employee, attorney, accountant, investment banker or broker, or real estate agent within the two-year period ending on the date of transfer of the first relinquished property. These persons are disqualified because they are presumed to be under the Taxpayer's control. Thus, the Taxpayer is deemed to have control of the exchange funds, otherwise known as “constructive receipt”. Constructive receipt by the Taxpayer invalidates the §1031 exchange.
If exchange funds are set aside or otherwise made available to you, it is also considered to be constructive receipt. Of course, if you actually receive the exchange funds you will invalidate your exchange.
The most common reason an exchange fails is missed deadlines. Potential replacement property(ies) must be identified by midnight of the 45th day after the relinquished property transfer. Therefore, it is advisable to begin searching for the replacement property as soon as possible. In addition, the replacement property must be received by the taxpayer within the exchange period which ends on the earlier of 180 days from the date on which the taxpayer transfers the first relinquished property, or the due date for the taxpayer's federal income tax return for the taxable year in which the transfer of the relinquished property occurs. Extensions may be available for Taxpayers within a Presidentially Declared Disaster Area, or in active service in a combat zone.
Same Taxpayer Rule
Another mistake someone could inadvertently make would be to change the manner of holding title from the relinquished property to the replacement property. As a general rule, the same Taxpayer that transferred the relinquished property should be the same Taxpayer that acquires the replacement property. There are a variety of reasons you might want to change how title is held in an exchange and some changes are allowed, but you must be sure to talk it over with your tax advisor first.
Related Party Exchanges
You must also give serious consideration to any relationship you might have with the seller of the replacement property. Acquiring replacement property from a related party is potentially problematic, so the facts of the transaction should be reviewed by your tax advisor before proceeding. The IRS could view the transaction as an abusive shift of basis between related parties resulting in tax avoidance and disallow the exchange. Exchanges involving related parties are allowed, but both parties must hold their newly acquired properties for at least two years or both exchanges will fail.
First American Exchange has helped thousands of taxpayers successfully complete even the most difficult transactions. While we don’t provide tax or legal advice, we make it our business to keep you informed of your exchange deadlines and other potential pitfalls that could jeopardize your exchange.
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