Have you ever wondered "If I choose not to complete my 1031 Exchange, when can I get my money back?" This is a good question and one that a Qualified Intermediary ("QI") occasionally hears from clients.
The answer depends on the situation and timing of the client's exchange. The g6 regulations (from Treasury Regulation §1.1031(k)-1(g)(6)) dictate the circumstances under which a QI can release 1031 funds to the client. Specifically, the g6 regulations state that funds cannot be released by the QI until:
- After the 45-day identification period, if no replacement property is identified;
- Once the 45-day identification period has passed, after the receipt of all identified replacement property; or
- After the end of the 180-day exchange period.
Why would the QI have concerns about releasing their client's 1031 funds early, especially if the client is willing to pay taxes on the gain anyway? If the QI does not follow the g6 regulations, the QI may be deemed an agent of the client, and agents are disqualified from participating as a QI in a 1031 exchange. Further, if the QI releases funds in contradiction to the g6 regulations, the IRS may assert that the g6 rules are meaningless to the QI and then consider the QI an agent of all its clients, thus jeopardizing those exchanges as well.
It is the QI's job to help facilitate a smooth 1031 Exchange, not to expose their clients to possible risks. In selecting a QI, an investor should consider the QI's integrity and financial strength. Both are vitally important to ensure the safest and most secure 1031 transaction.
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