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What is the Three-Property Rule in a 1031 Exchange?

What is the Three-Property Rule in a 1031 Exchange?

It is always complex to suggest to customers to think about a Section 1031 exchange, partly because of many potential complications and problems.

To complete a 1031 exchange, several laws, regulations, and standards must be followed. This holds regardless of the type of trade you choose.

With all the potential concerns, many CPAs struggle with how to approach these transactions with their clients. There are seven basic rules to help you understand the three-property rule exchange.

Element #1: Only certain entities and asset types can participate in a 1031 exchange

A 1031 exchange is similar to a traditional IRA or 401(k) tax-deferred retirement plan. Transactions made in your retirement plan, such as the sale of fund shares, are not taxable.

Capital gains that would otherwise be taxable are deferred when you sell assets as part of your retirement plan. You exchange one income-producing support for another. You only pay taxes once you withdraw the cash from the qualified retirement plan.

The deferred tax on the exchange of real estate investments follows the same general rule. As long as the money is invested in comparable properties, the capital gains tax can be postponed (and you comply with all the laws).

A wide range of taxpayers is eligible for the 1031 exchange. The importance of people, C and S companies, partnerships, LLCs, and trusts cannot be overstated. They are most frequently applied when selling real estate. But section 1031 may also apply to some personal property swaps.

The fundamental tenet of a 1031 exchange is that a taxpayer cannot obtain any proceeds from a discussion of one like-kind property for another that may be used to pay taxes. By replacing the outdated property, the taxpayer gets continuity of investment. No profit or loss is “recognized” or “needed” for income tax since all gain is still locked in the swapped item.

Element #2: Compliance

Everything utilized as disposable property, then, must be usable. Because only property swaps are now permitted, the asset must be regarded as “real property” under existing tax legislation.

Before the Tax Relief and Jobs Act, Section 1031 permitted the exchange of personal property. Consequently, the rule requires a legal component. Litigation happens when there is a disagreement about whether a requirement has been satisfied.

Regarding inheritance rights, there may be a dispute about whether the property is tangible. Again, try to use examples that tend to lie on the edges to inform your clients better. For example, suppose someone wants to use a boat dock in exchange.

Is that appropriate? In some jurisdictions, it might be. But in other cases, it may not be acceptable. Again, examples like this can help clients understand the element of eligibility.

Element #3: Relatedness

The taxpayer must swap the alienated property for a replacement property of a comparable sort for the transaction to be considered genuine. In other words, there must be enough similarity between the two items (but not in class or quality).

According to judicial practice, this feature is very widely defined, meaning that any property regarded as real estate will be comparable to real estate. Therefore, a straightforward block of stock in a residential property would be compared to a 30-year lease in a commercial structure.

The way investors acquire real estate has evolved due to online marketplaces. For instance, many platforms let you buy residential and commercial real estate shares for a minimal investment.

You might need to know that some of these platforms let you postpone paying capital gains taxes when trading investments through a 1031 exchange.

Element #4: You need a qualified intermediary to conduct an exchange 1031

Starting with the money received from the sale of the previous property, do a 1031 financial transaction. Again, a “qualified intermediary” is required.

At the exchange of the properties, the middleman distributes the money after keeping all selling earnings (or sometimes to pay the fees associated with acquiring the new property). The actual cash profits from the initial sale must be used to buy the new property in order to qualify. As a result, any money you withhold from selling the previous property is taxable income.

The closing title business will send the profits of the sale of the abandoned property immediately to a licensed intermediary. This person or company holds back the money until the deal to buy the new home is prepared for closing.

A certified intermediary subsequently deposits the funds from the sale of the abandoned property to pay for the new property. The qualified intermediary then gives the most recent property to the taxpayer after purchasing it. The IRS refers to no “constructive receipt” of payments for the taxpayer.

The IRS claims that the intermediary is “qualified” since they are a third party who is impartial and acting to facilitate the trade. You are unable to serve as your middleman as a result. Additionally, your agent cannot serve as your intermediary.

Element #5: Intended for business or investment purposes

The “ownership requirement” is another name for this component. Both the assets that were alienated and replaced had to be utilized for commercial or investment purposes for the exchange to be legal. The most problematic element for taxpayers is this one.

Many people need help comprehending how this need operates. The demand for ownership is qualitative rather than quantitative.

Many taxpayers ask: How long do I have to own or have this property? Or, what exactly do I need to do to meet this requirement?

The answer is that the ownership requirement is satisfied if you intend to demonstrate that you had the “intent” to own the property for business or investment purposes. And that intent is evident from all the facts and circumstances of the particular case. This means there is no guarantee that the claim will be met with 100% certainty.

It all depends on your unique situation. There have been cases where a person has been found to have proven intent, even if the time of possession was less than a year. But, again, it all depends on the facts of your case.

Element #6: Actual Transfer

The most crucial concept to comprehend is this one. An exchange requires the physical transfer of one object and the receipt of another. This component was more important even before the (k) Treasury Regulations added more formality to discussions.

In prior cases, deciding whether there had been an exchange or a “disguised sale” followed by a purchase was frequently necessary. However, because there was an actual transfer of ownership, courts have often decided such a bargain was legitimate.

In other words, the taxpayer may have facilitated the trade through a go-between. However, since the taxpayer returned a comparable item of property, the firm continued to operate. These days, people question this aspect less frequently. It is still an essential part of the process, though.

Element #7: Timing is everything

There are a few key dates that must be met in order to complete a 1031 exchange. Such a company need not include a simultaneous sale of properties. However, you must adhere to the two deadlines, or the total gain will be subject to taxation. These limitations cannot, under any circumstances, be relaxed (except for Presidentially declared disasters).

The first constraint is that you must decide on the prospective replacement property you are providing or intend to purchase within 45 days of the date the abandoned property was sold.

The identity must be provided to the party taking part in the exchange, such as the vendor of the replacement item or your qualified intermediary. It must be in writing and signed by you. Notifying your accountant, real estate agent, or any people working on your behalf in the transaction is inadequate.

The replacement qualities must be specified explicitly in the written identification throughout this identification period. This might refer to a new name, postal address, or legal description in real estate. Again, adhere to the IRS regulations to identify many properties with the highest combined worth.

The exchange period is the second term. Once more, the exchange must be finished within 180 days of the sale of the exchange property, and the replacement property must be received.

The taxpayer must choose the replacement property within 45 days of closing and acquire it within 180 days of wrapping up the sale of the original property to complete a 1031 exchange.

An easy way to make a 1031 exchange

The way investors acquire real estate has evolved due to online marketplaces. For instance, many platforms let you buy residential and commercial real estate shares for a minimal investment.

You should know, though, that some of these platforms let you postpone paying capital gains taxes when trading investments through a 1031 exchange.


Customers are often plagued by questions and concerns about the upcoming exchange. This is not surprising. In a 1031 exchange, the stakes are very high. Clients often have hundreds of thousands or even millions of dollars in profits tied up in their assets. A broken sale can result in a huge tax liability.

Related Articles:

Realized vs Recognized Gain in 1031 Exchange

What is a 1031 Exchange Drop and Swap?

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