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David, Ph.D
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IRS 1031 Like Kind Exchange

Customer Question


I need to know all aspects of doing a 1031 like kind exchange for a rental property.
I have an opportunity to purchase a property from an owner and also have a property to sell.
I understand the 45 and 180 day times to ID and purchase the property where you sell first.
1)Can you buy first and then sell and what are the time limits in that situation?
2)Can I do the exchange using an escrow account instead of a "Qualified Intermediary".
3)Does the purchaser of my property have to use it as an income property or can it be used as a owner residence?
4)If my sold property must be rented as income producing, what is the time period to convert it to owner residence?
5)Same question as #3 for the purchased property?
6)Must my property being sold be listed as "1031 Like Kind Exchange" in the property description?
7) Any other pitfalls that I must be aware to sucessfully execute the transaction?


7) What rules apply for just selling your house and then buying another
so as to not get killed with IRS taxes of depreciation recapture
and capital gains and would this be an easier route that like kind
exchange?



Submitted: 11 years ago.
Category: Tax
Expert:  David replied 11 years ago.
1) Can you buy first and then sell and what are the time limits in that situation? No, that is why the 45, and 180 day limits.


2) Can I do the exchange using an escrow account instead of a "Qualified Intermediary" Yes is the answer …but very unadvisable the intermediary is well versed and will have the proper paper work. Most are Lawyers and or title companies with bonding behind them. The trouble you can get yourself into is not worth the risk and legalities to not use a qualified intermediary.



3) Does the purchaser of my property have to use it as an income property or can it be used as a owner residence? The 1031 is your choice and does not have anything to do with the buyer of your property.



4) If my sold property must be rented as income producing, what is the time period to convert it to owner residence? The 1031 is your choice and does not have anything to do with the buyer of your property therefore has no rule they have to abide by it is their property to “use and enjoy”.



5) Same question as #3 for the purchased property? It does not matter in most cases as long it is Like and Kind”. The definitions of “Like Kind” are often varied that is why an intermediary is needed to clear up legal question. If you called the IRS they would hesitate and say you need to consult a lawyer or an intermediary.



6) Must my property being sold be listed as "1031 Like Kind Exchange" in the property description? Yes with the IRS because to determine the Like and Kind part they will require the description. If you are talking about "listing" on the MLS no it does not matter to buyer it only matters to you as the seller. Don’t try this type of exchange on your own.



7) Any other pitfalls that I must be aware to successfully execute the transaction? . Don’t try this type of exchange on your own the fee’s are usually less then a few thousand dollars ...just pay it it’s worth the time and money. I will liken this as to a jury trial, you can defend yourself but why would you when you can afford an attorney?



8) What rules apply for just selling your house and then buying another so as to not get killed with IRS taxes of depreciation recapture and capital gains and would this be an easier route that like kind exchange? Don’t involve your primary residence, rather then an investment property, the residence is a completely different issue. Don’t confuse investment with your residence even though your residence can be an investment.





I hope this clears it up a little for you. It is a very confusing topic. Again I'd advise you to get professional help rather then seek and answer such as this. This is kin to trying to get a M.D. to diagnose and treat you over the internet. Can it be done yes ... should it be done? No. I hope this will help you even though this is probally not what you wanted to hear. I've been involved in these transactions for years and they are still tough to deal with. Best of luck to you. Great first step in asking for advise.

Customer: replied 11 years ago.
Reply to David's Post:

Hi Dave.

I have been told that a reverse "Like Kind Exchange " is possible meaning to buy and then to sell.

Reading the Internal Revenue Code , section 1031, it seems to leave
open the option to do this as the wording is that the clock starts when
you sell and the identifying or buying must be done in "less than" 45
or 180 days. Buying first is earlier than zero days but also less than
45 or 180 as well.



The wording of the code also seem to indicate that the buyer must use
the property as investment ... but I am having a hard time determining
if that is so. I would assume that there would also be a time
limit on my purchased propertybeing used as investment but can't glean
from the code if there is a time limit . Say I did the exchange
and after three years , the IRS could not audit it and could then move
in to the property as a residence. Other than that , I can't see
the time limit if any.



I am gathering information from all sources possible and will review
you answers carefully before I accept. I would also like to see other
expert opinions as well. I do appreciate your input.








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