| Following is a reproduction of the IRS's rules and
requirements for 1031 tax deferred exchanges with regards to
real property. If you have any questions regarding the sale
of your real property or questions about what qualifies for
a 1031 exchange or not, please consult your tax
professional. Sec. 1031. - Exchange of property held for
productive use or investment
(a) Nonrecognition of gain or loss from exchanges solely
in kind
(1) In general
No gain or loss shall be recognized on the exchange of
property held for productive use in a trade or business or
for investment if such property is exchanged solely for
property of like kind which is to be held either for
productive use in a trade or business or for investment.
(2) Exception
This subsection shall not apply to any exchange of -
(A) stock in trade or other property held primarily for
sale,
(B) stocks, bonds, or notes,
(C) other securities or evidences of indebtedness or
interest,
(D) interests in a partnership,
(E) certificates of trust or beneficial interests, or
(F) choses in action.
For purposes of this section, an interest in a partnership
which has in effect a valid election under section 761(a) to
be excluded from the application of all of subchapter K
shall be treated as an interest in each of the assets of
such partnership and not as an interest in a partnership.
(3) Requirement that property be identified and that
exchange be completed not more than 180 days after transfer
of exchanged property For purposes of this subsection, any
property received by the taxpayer shall be treated as
property which is not like-kind property if -
(A) such property is not identified as property to be
received in the exchange on or before the day which is 45
days after the date on which the taxpayer transfers the
property relinquished in the exchange, or
(B) such property is received after the earlier of -
(i) the day which is 180 days after the date on which the
taxpayer transfers the property relinquished in the
exchange, or
(ii) the due date (determined with regard to extension) for
the transferor's return of the tax imposed by this chapter
for the taxable year in which the transfer of the
relinquished property occurs.
(b) Gain from exchanges not solely in kind
If an exchange would be within the provisions of subsection
(a), of section 1035(a), of section 1036(a), or of section
1037(a), if it were not for the fact that the property
received in exchange consists not only of property permitted
by such provisions to be received without the recognition of
gain, but also of other property or money, then the gain, if
any, to the recipient shall be recognized, but in an amount
not in excess of the sum of such money and the fair market
value of such other property.
(c) Loss from exchanges not solely in kind
If an exchange would be within the provisions of subsection
(a), of section 1035(a), of section 1036(a), or of section
1037(a), if it were not for the fact that the property
received in exchange consists not only of property permitted
by such provisions to be received without the recognition of
gain or loss, but also of other property or money, then no
loss from the exchange shall be recognized.
(d) Basis
If property was acquired on an exchange described in this
section, section 1035(a), section 1036(a), or section
1037(a), then the basis shall be the same as that of the
property exchanged, decreased in the amount of any money
received by the taxpayer and increased in the amount of gain
or decreased in the amount of loss to the taxpayer that was
recognized on such exchange. If the property so acquired
consisted in part of the type of property permitted by this
section, section 1035(a), section 1036(a), or section
1037(a), to be received without the recognition of gain or
loss, and in part of other property, the basis provided in
this subsection shall be allocated between the properties
(other than money) received, and for the purpose of the
allocation there shall be assigned to such other property an
amount equivalent to its fair market value at the date of
the exchange. For purposes of this section, section 1035(a),
and section 1036(a), where as part of the consideration to
the taxpayer another party to the exchange assumed (as
determined under section 357(d)) a liability of the
taxpayer, such assumption shall be considered as money
received by the taxpayer on the exchange.
(e) Exchanges of livestock of different sexes
For purposes of this section, livestock of different sexes
are not property of a like kind.
(f) Special rules for exchanges between related persons
(1) In general If -
(A) a taxpayer exchanges property with a related person,
(B) there is nonrecognition of gain or loss to the taxpayer
under this section with respect to the exchange of such
property (determined without regard to this subsection), and
(C) before the date 2 years after the date of the last
transfer which was part of such exchange -
(i) the related person disposes of such property, or
(ii) the taxpayer disposes of the property received in the
exchange from the related person which was of like kind to
the property transferred by the taxpayer, there shall be no
nonrecognition of gain or loss under this section to the
taxpayer with respect to such exchange; except that any gain
or loss recognized by the taxpayer by reason of this
subsection shall be taken into account as of the date on
which the disposition referred to in subparagraph (C)
occurs.
(2) Certain dispositions not taken into account
For purposes of paragraph (1)(C), there shall not be taken
into account any disposition -
(A) after the earlier of the death of the taxpayer or the
death of the related person,
(B) in a compulsory or involuntary conversion (within the
meaning of section 1033) if the exchange occurred before the
threat or imminence of such conversion, or
(C) with respect to which it is established to the
satisfaction of the Secretary that neither the exchange nor
such disposition had as one of its principal purposes the
avoidance of Federal income tax.
(3) Related person
For purposes of this subsection, the term ''related person''
means any person bearing a relationship to the taxpayer
described in section 267(b) or 707(b)(1).
(4) Treatment of certain transactions This section shall not
apply to any exchange which is part of a transaction (or
series of transactions) structured to avoid the purposes of
this subsection.
(g) Special rule where substantial diminution of risk
(1) In general
If paragraph (2) applies to any property for any period, the
running of the period set forth in subsection (f)(1)(C) with
respect to such property shall be suspended during such
period.
(2) Property to which subsection applies
This paragraph shall apply to any property for any period
during which the holder's risk of loss with respect to the
property is substantially diminished by -
(A) the holding of a put with respect to such property,
(B) the holding by another person of a right to acquire such
property, or
(C) a short sale or any other transaction.
(h) Special rules for foreign real and personal property
For purposes of this section -
(1) Real property
Real property located in the United States and real property
located outside the United States are not property of a like
kind.
(2) Personal property
(A) In general
Personal property used predominantly within the United
States and personal property used predominantly outside the
United States are not property of a like kind.
(B) Predominant use
Except as provided in subparagraph [1] (C) and (D), the
predominant use of any property shall be determined based on
- ''subparagraphs''.
(i) in the case of the property relinquished in the
exchange, the 2-year period ending on the date of such
relinquishment, and
(ii) in the case of the property acquired in the exchange,
the 2-year period beginning on the date of such acquisition.
(C) Property held for less than 2 years
Except in the case of an exchange which is part of a
transaction (or series of transactions) structured to avoid
the purposes of this subsection -
(i) only the periods the property was held by the person
relinquishing the property (or any related person) shall be
taken into account under subparagraph (B)(i), and
(ii) only the periods the property was held by the person
acquiring the property (or any related person) shall be
taken into account under subparagraph (B)(ii).
(D) Special rule for certain property
Property described in any subparagraph of section 168(g)(4)
shall be treated as used predominantly in the United States
Neda Dabestani-Ryba is a licensed Realtor in Maryland.
She is a member of the President's Circle of Top Real Estate
Professionals. She can be reached at (800) 536-3806 or visit
her website for more information:
http://neda.dabestani.pcragent.com/ Prudential
Carruthers REALTORS is an independently owned and operated
member of Prudential Real Estate Affiliates, Inc., a
Prudential Financial company. Equal Housing Opportunity.
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