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IRS Tightens Related Party Rules for 1031 Exchanges

Bank Of America Investment A recent IRS Ruling will now reduce taxpayer flexibility when they complete a 1031 exchange by buying property from a relative.

If 1031 exchanges are limited to the U.S. so that the economy will benefit and the IRS will be able to collect capital gains taxes in the future, then you may be wondering what rules apply to U.S. territories such as Guam, the U.S. Virgin Islands, and Puerto Rico. In private letter rulings, kind in an exchange with a U.S. producing, kind exchange, which merely state that the property must be held for your trade or business or as an investment.

Investment Opportunity To be clear, there are two types of exchanges involving relatives. In the simultaneous type you trade deeds. Section 1031 allows you to swap properties tax free with a relative provided both of you then hold the property you receive for at least two years.

As a real estate investor, you probably are aware of the advantages of a 1031 exchange over outright sale of a property. An exchange defers your capital gains taxes, keeps your money working for you, and helps to build equity and maximize your returns. But 1031 exchanges are allowed not only for the good of the investor; by allowing investors to move their capital to the most advantageous investments, section 1031 stimulates the U.S. economy.

Banc Of America Investment In the deferred type of exchange, you sell your property to a third party and use the money to buy your relative's property. Section 1031(f) prohibits such a purchase unless you can prove to the IRS that you had no motive to avoid tax. The new ruling pertains to this deferred type involving a relative.

Posted by Taxemous Exchangemous on September 4, 30pm. Previous Post View Blog Posts Section 1031 of U.S. tax code is based on the idea of a mutually beneficial relationship between the real estate investor and the U.S. economy as a whole. 1031 exchanges allow investors to put their capital to work in the most advantageous ways possible, which in turn stimulates the economy by creating more jobs and greater opportunity in the U.S. This is one major reason why 1031 exchanges cannot occur outside of U.S. territory. In addition, a tax deferment means that the IRS will want to collect your capital gains taxes in the event that you someday sell your replacement property, and it can be very difficult for them to collect taxes on the sale of foreign property.

Banking Investment Prior to this ruling, many exchange professionals assumed that the "no tax avoidance" exception meant that if a related seller of the replacement (let's call it the "new") property pays tax, or is able to sell the property without tax, then you could buy from them even if they are related. So for example if your brother is selling you a house that he owns, and would have no tax liability because he is selling it at a loss, it was felt that your purchase of the property would be allowed because there is no tax avoidance. Ditto if it was his personal residence and the gain is excluded or if your brother merely declares the gain and pays the tax.

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Investment Solution Strategic The new ruling makes it clear that the IRS sees the purchase of the new property from a related party in a deferred exchange as a violation of the prohibition against deferred related party dealings.

business taxpayers should hold off breathing a sigh of relief that the IRS is focusing solely on business taxpayers. The latest figures reveal a $ business income and a $10 billion tax gap related to wages, salaries, and tips. The immediate future holds more fact sheets for all taxpayers. More importantly, the IRS will begin tightening the screws via audits and other enforcement efforts to get taxpayers in line.

Investment Banking Services In the Technical Advice Memorandum issued as Private Revenue Ruling 9748006, a son sold an undivided interest in bare land and immediately purchased a residence from his mother. The mother had purchased the residence just prior to its acquisition by the son and had no taxable gain on the sale. The son used a number of arguments making his case that the exchange should stand, the most prominent of which was that there was no tax avoidance in the transaction because the mother had no gain. The IRS disagreed and ruled that the purchase violated Section 1031(f) because the family unit (i.e. the mother and son) ended up with both the house and the cash in completion of the exchange.

Bank Investment One of the sons's other argument was that because he had used a qualified intermediary to handle his exchange; he had purchased the new property from the qualified intermediary, who was not related, rather than from his mother. Since the acquisition of the house from the mother happened simultaneously with the sale of the land, it seems that the only use of the qualified intermediary was to insert an unrelated party between the son and the mother. The IRS stated that the use of a qualified intermediary would not correct an otherwise flawed transaction.

Alternative Investment This is the first ruling the IRS has issued concerning deferred related party replacements in a 1031 exchange. It makes it clear that the Service intends to narrowly apply the tax avoidance exemption allowed by 1031(f) in all cases except a direct swap of property. And it imposes a new rule of thumb that might simply be stated as follows:

Online Investment Services "If the buyer and the seller are related, and one of the parties ends up with the property and the other ends up with the cash, the exchange will be disallowed".

Accompany Essential Investment As with many IRS rulings, it raises more questions than it answers. Most obvious is the question of "what situation would give rise to a 'no tax avoidance' situation". The ruling is also not clear about what the son intended to do with property. The implication I got from reading it was that the son intended to rent the property to the mother. The IRS did not address that issue. And most interesting to me was the fact that this transaction was in effect a reverse exchange since the new property was acquired for the taxpayer before the taxpayer had closed the sale of the old property. No mention was made of that fact. Very interesting indeed.

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Who is a "Related Party?
Related persons are tightly defined by the IRS in Sections 267(b) and (c). Below is a brief summary of the definitions. If you have a relationships that is similar to those below, but not mentioned exactly, you should consult your attorney or your CPA to make sure you are not defined as related parties:
Member of your immediate family (e.g., an individual and his spouse, siblings, parents, children);
An individual and a corporation, partnership, estate or trust in which they own, directly or indirectly, more than 50% (by value) of the stock;
Two corporations which are members of the same controlled group;
In determining indirect ownership, an individual includes only his brothers and sisters, spouse, ancestors, and lineal descendants.

Investment Management Solution The IRS construes these rules very exactly. For example, if you own exactly 50.00% of a corporation you are not related; if you own 50.10% you are.

Investment Management Services By John E. Roush, Broker-Owner Atrium Real Estate Investments. John is a full-time real estate agent specializing in real estate investment and real estate investment education. To contact John send all correspondence to Johnr@investorloft.com © 2005 InvestorLoft.com

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