How to Do a 1031 Exchange: Definition, Rules and What to Know

A 1031 exchange can be complicated, but it has some big tax advantages. Here's how it works and what to remember.

Tina OremSeptember 23, 2020
How to Do a 1031 Exchange: Definition, Rules & What to Know

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If you’re thinking of selling a piece of property that could result in a big profit (and a big tax bill), a 1031 exchange could be a useful strategy.

What is a 1031 exchange?

A 1031 exchange, named after section 1031 of the U.S. Internal Revenue Code, is a way to postpone capital gains tax on the sale of a business or investment property by using the proceeds to buy a similar ("like-kind") property.

How to do a 1031 exchange

A 1031 exchange can be complex, so you'll likely want to consult with a qualified tax pro. You can read the rules and details in IRS Publication 544, but here are some basics about how a 1031 exchange works and the steps involved.

Step 1. Identify the property you want to sell. A 1031 exchange is generally only for business or investment properties. Property for personal use — like your primary residence or a vacation home — typically doesn’t count.

Step 2. Identify the property you want to buy. The property you’re selling and the property you’re buying have to be "like-kind," which means they’re of the same nature, character or class, but not necessarily the same quality or grade (more on that below). Note that property inside the U.S. isn’t considered like-kind to property outside the U.S.

Step 3. Choose a qualified intermediary. If you don’t receive any proceeds from the sale, there’s no income to tax — that’s generally the idea behind a 1031 exchange. One way to make sure you don't receive cash prematurely is to work with a qualified intermediary, sometimes called an exchange facilitator. Basically, they hold the funds in escrow for you until the exchange is complete (assuming the sale and the purchase don’t take place simultaneously). Choose carefully. If they go bankrupt or flake on you, you could lose money. You could also miss key deadlines and end up paying taxes now rather than later.

Step 4: Decide how much of the sale proceeds will go toward the new property. You don’t have to reinvest all of the sale proceeds in a like-kind property. Generally, you can defer capital gains tax only on the portion you reinvest. So if you keep some of the proceeds, you might end up paying some capital gains tax now.

Step 5: Keep an eye on the calendar. For the most part, you have to meet two deadlines or the gain on the sale of your property may be taxable.

  • First, you have 45 days from the date you sell your property to identify potential replacement properties. You have to do that in writing and share it with the seller or your qualified intermediary.

  • Second, you have to buy the new property no later than 180 days after you sell your old property or after your tax return is due (whichever is earlier).

Step 6: Be careful about where the money is. Remember, the whole idea behind a 1031 exchange is that if you didn’t receive any proceeds from the sale, there’s no income to tax. So, taking control of the cash or other proceeds before the exchange is done may disqualify the deal and make your gain immediately taxable.

Step 7: Tell the IRS about your transaction. You’ll likely need to file IRS Form 8824 with your tax return. That form is where you describe the properties, provide a timeline, explain who was involved and detail the money involved.

Notable rules, qualifications and requirements for 1031 exchanges

  • You still have to pay tax, just later. A 1031 exchange doesn’t make capital gains tax go away; it just postpones it. A capital gains tax bill will come due at some point, so prepare for that.

  • Not everything is eligible. A key rule about 1031 exchanges is that they’re generally only for business or investment properties. Property for personal use — like your home, or a vacation house — typically doesn’t count. (Read up on how capital gains tax works on home sales.) Also, securities and financial instruments aren’t usually eligible for 1031 exchanges. This includes inventory, stocks, bonds, securities, debt instruments, partnership interests and certificates of trust.

  • The properties don’t have to be as similar as you may think. You don’t necessarily have to swap a rental property for an identical rental property or a parking lot for a parking lot. "Like-kind" generally means you’re swapping one investment property for another investment property (again, be sure to see a qualified tax pro before taking action). It might be possible to exchange vacant land for a commercial building, for example.

  • You’re not limited to buildings or land. Real estate isn’t the only kind of property eligible for 1031 exchanges. "Personal property," which includes items such as cars or trucks, may be eligible. You just can’t exchange real property for personal property (they’re not like-kind).

  • Relationships matter. Your qualified intermediary or exchange facilitator can’t be a relative, your attorney, banker, employee, accountant or real estate agent. People who have served you in any of those capacities in the past two years are also off-limits. And you can’t be your own qualified intermediary.


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Types of 1031 exchanges

Here are three kinds of 1031 exchanges to know.

Simultaneous exchange

In a simultaneous exchange, the buyer and the seller exchange properties at the same time.

Deferred exchange (or delayed exchange)

In a deferred exchange, the buyer and the seller exchange properties at different times. However, the sale of one property and the purchase of the other property have to be "mutually dependent parts of an integrated transaction." The rules here can get particularly complex, so see a tax pro.

Reverse exchange

In a reverse exchange, you buy the new property before you sell the old property. Sometimes this involves an "exchange accommodation titleholder" who holds the new property for no more than 180 days while the sale of the old property takes place. Again, the rules are complex, so see a tax pro.

Last, watch out for 1031 exchange scams

The IRS permits 1031 exchanges. But someone promoting them might have ulterior motives if they tell you to exchange vacation homes (property for personal use typically doesn’t qualify) or that the deal is tax-free (actually, it’s tax-deferred).

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