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1031 Exchanges: Common Mistakes to Avoid


Written By: Whitney Nash, Owner of Above & Below 1031 LLC and member of CCAR's Affiliate Committee.

A 1031 exchange, named after Section 1031 of the Internal Revenue Code, is a powerful tax-deferral strategy used by real estate investors to defer capital gains taxes when selling investment property. Instead of recognizing the capital gains and paying taxes on the sale proceeds, investors can reinvest the proceeds into a like-kind replacement property, effectively deferring the taxes until a future date.

However, navigating a 1031 exchange can be complex, and there are several common pitfalls that investors should be aware of, and avoid, to ensure a successful exchange. These are some common mistakes that can trigger an exchange to have unintended tax consequences or cause it to be invalidated and fail completely:

  1. Failure to Identify Replacement Property Within Timelines: In a 1031 exchange, you must identify potential replacement properties within 45 days of selling your current property and complete the purchase of one or more of those identified properties within 180 days.
  2. Incorrectly Identifying Replacement Properties: The IRS has specific rules regarding the identification of replacement properties. Investors must adhere to these rules, such as the three-property rule (identify up to three properties regardless of their value and buy any one, two or three of them), the 200% rule (identify any number of properties as long as their total fair market value (FMV) doesn't exceed 200% of the value of the relinquished property and buy any number of them), or the 95% rule (identify any number of properties of any value, but at least 95% of the total FMV of all identified replacement properties must be acquired). Only property listed on the ID letter can be purchased and the ID letter cannot be changed after the 45-day deadline.
  3. Not Using a Qualified Intermediary (QI): A QI ensures that the 1031 exchange meets IRS requirements. They are a required third-party facilitator with whom an exchange agreement must be in place before the relinquished property closes. The QI holds the funds from the sale of the relinquished property until it is used for the replacement property purchase. Attempting a 1031 exchange without a QI or using a “disqualified” person can also result in the exchange being invalid.
  4. Missing Eligibility Criteria: Not all properties are eligible for 1031 exchanges. Certain types of properties, such as primary residences or inventory held for sale (such as fix-n-flips), do not qualify on the sell-side or buy-side. The properties on both sides of the exchange must be “held for investment or use in a trade or business for a period of time”.
  5. Non-like-Kind Exchange: The properties involved in a 1031 exchange must be "like-kind real property", which means they must be of the same nature or character, even if they differ in grade or quality. For example, single family homes can be exchanged for vacant land or commercial property, but they cannot be exchanged for stocks or interest in a partnership.
  6. Using Exchange Funds for Personal Use: Exchange funds must be held by the QI and cannot be touched or controlled by the investor. Using these funds for personal expenses or investments outside of the exchange can disqualify the exchange.
  7. Ignoring Debt Replacement Rules: If you have debt on your relinquished property and don't replace it with equal or greater debt (loan or personal cash) on the replacement property, you may trigger taxable gain known as "boot." Being mindful of debt replacement rules is essential to maximizing the tax benefits of a 1031 exchange.
  8. Failure to Consult with Tax and Legal Professionals: 1031 exchanges involve intricate tax and legal implications. Failing to consult with tax advisors and legal professionals who specialize in 1031 exchanges can lead to oversights and mistakes that could have been avoided.
  9. Incomplete or Incorrect Documentation: Proper documentation is crucial for a 1031 exchange. Failing to have and maintain accurate records or submitting incomplete documentation can result in the disqualification of the exchange.
  10. Not Considering Alternatives: While 1031 exchanges offer significant tax advantages, they may not always be the best option for every investor. Failing to consider alternative strategies to assess the most suitable course of action could be a mistake.

This is not an exhaustive list of errors that can cause an exchange to fail or become taxable, and additional qualifications and rules must be adhered to. But, by understanding these potential pitfalls and seeking guidance from qualified professionals such as tax advisors, legal experts, and qualified intermediaries, investors can maximize the benefits of a 1031 exchange while avoiding costly errors that could jeopardize the tax-deferred status of their transaction.


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