Failed Exchanges Late in the Year May Have Tax Benefits!


posted on January 16, 2019

File it under the “every cloud has a silver lining” train of thought: a failed 1031 Exchange can have tax benefits—but only if it happens late in the tax year.

It sometimes happens that taxpayers who engage in a 1031 exchange get back unused proceeds in the next tax year; that is, in the year following the sale of their relinquished property.

For example, if you initiate an exchange in August of one year but are unable or decide not to purchase one or more identified replacement properties within the 180-day exchange period, you could receive unused 1031 funds in January of the following year.

"The big question then becomes will you be taxed on the money in the year you sold your relinquished property or in the following year when you received the unused money?"

IRS regulations provide that exchange proceeds held by a qualified intermediary can qualify for installment sale treatment under IRC §453. Reg. §1.1031(k)-1(j)(2) when there’s a “bona fide intent” to complete the exchange and the exchange straddles two tax years Reg. §1.1031(k)-1(j)(2)(iv). That is, the cash not reinvested in replacement property can be reported as an installment sale in the year following the year in which your relinquished property was sold…

Put another way, the cash “boot” you receive in the new year from the property you relinquished in the previous year can be reported using an installment sale method that allows you to defer gains from the exchange proceeds you receive from your qualified intermediary.

Examples of tax benefits from a failed exchange

First, let’s quickly revisit what “boot” is. As we talked about in a previous post, “boot” is not a term adopted by the IRS but is often used when talking about the tax consequences of a failed or partial §1031 tax-deferred exchange.

Boot is just shorthand for the money or fair market value of the relinquished property you receive in an exchange. It includes debt reduction when trading “down,” as well as sales proceeds used to cover closing costs which are not closing expenses.

Here are two illustrations that may make the IRS rules on this tax filing approach clearer.

  1. You close on a relinquished property on November 1st. Sales proceeds of $1 million come into the 1031 Exchange. Three potential replacement properties are identified and one closes on December 15th using $600,000 of the $1 million. If you’re unable to purchase one or both of the other two identified properties by the end of the tax year, the remaining $400,000 is disbursed to you on April 30th of the following year. That $400,000 cash “boot” is reported for the year it was received from your qualified intermediary, not the year you relinquished the property.
  2. You open a 1031 exchange and close on your relinquished property on December 3rd. During the mandated 45-day identification period, you’re unable to locate suitable replacement properties. On day 46, which falls on January 18th of the following year, your qualified intermediary releases back to you the exchange proceeds. You can then report the 2018 sale under the IRS installment sale method.

When filing the tax return for the year the property was relinquished, IRS Form 6252 is used but the funds held by your qualified intermediary are not reflected on it; instead, they’re reported the following year, when they were released to you.

On the other hand …

What if you want to pay all the tax due in the year you closed on the relinquished property?

The IRS does allow you to pay all taxes due in the closing year, even if you receive or will receive some payments in the following tax year. This tax election is a 3-step process where you must:

  • Report the sale of the relinquished property on Schedule D of your Form 1040 and/or Form 4787, not on Form 6252 (Installment Sale).
  • Make this election by your tax return filing due date, including any extensions.
  • File an amended return within 6 months of the tax filing due date if you change your mind about splitting the reporting over two years.

Keep in mind that once you make an election to be taxed in the closing year you’ll owe tax on the entire amount of the gain, even the part of it that’s attributable to payments you’ll receive the following year. While it’s not difficult to change your mind about dividing the tax payments over two years, you can only revoke the one-year election and revert to an installment sale approach with IRS approval.

Finally, IRS regulations do not specifically address how to handle a scenario when proceeds from the sale of your relinquished property are used to pay off debt secured by that property. Are taxes for gain attributable to that liability relief due in the year of the sale or the following year?

We can look to IRS Revenue Ruling 2003-56 which relates to a partnership’s exchange that straddled two tax years. It held that the amount of the relinquished liability that exceeds the amount of the replacement liability should be treated as money or other property received in the first taxable year of the partnership, the reasoning being that the excess would be attributable to the transfer of the relinquished property.

As with most complicated tax reporting issues, it’s always a good idea to consult with your accountant, CPA, or other tax professional to be sure you report a failed 1031 Exchange in the way that’s best for your investment objectives.

Final thoughts

When the gain is recognized as the result of a failed 1031 Exchange, and unused funds are returned to you as the seller of the relinquished property in the following year, the tax deferral allowed under the installment sale treatment can represent a welcome tax advantage. However, as each situation is unique,we strongly recommend that each taxpayer consults with their own tax advisor and legal counsel to determine the best tax strategy for their own situation and goals.

Turner Investment specializes in providing investors like you access to investment real estate suitable as 1031 Exchange replacement property. To learn more about whether this type of investment is right for you contact us today. We’d love to hear from you!

Turner Investment Corporation and McDermott Investment Services are neither CPAs nor tax attorneys and therefore cannot provide tax or legal advice. We encourage investors to seek counsel from their own Tax and or Legal Advisor. We welcome your Tax and Legal Advisors to take part in our discussions.

Disclaimer

The information contained on this page is not an offer to purchase, which can only be done through the private placement memorandum which includes a description of risks and benefits. 
Real estate brokerage services are provided by Turner Investment Corporation. Securities are offered through McDermott Investment Services, LLC,a registered Broker/Dealer, Member FINRASIPC, and MSRB. McDermott Investment Services, LLC and Turner Investment Corporation are separate entities.
Investment real estate, including securitized real estate, comes with substantial risks, including but not limited to; the absence of guaranteed income; lack of liquidity; the risks of owning, managing, operating and leasing properties; possible conflicts of interest with managers and affiliated persons or entities; the risks associated with leverage; tax risks, including possible changes in tax law; declining markets and challenging economic conditions; on-going fees; and known or unknown regulatory challenges. Finally, it should be understood that the ultimate risk of investing in real estate could include the total loss of principal investment.

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