OF REAL ESTATE
1031 TAX DEFERRED EXCHANGE:
A deferred Exchange is defined as an exchange in which, pursuant to "An Agreement", the taxpayer transfers property held either for productive use in a trade or business or for investment and subsequently receives another property to be held either for productive use in a trade or business or for investment.
Method of measuring investment in property for tax purposes. Example: Original cost, plus improvements, minus depreciation taken.
Interest earned during the exchange, payable at the end.
Old property, property being sold by the Exchanger. (Use to be called the Downleg property, now commonly called Phase I property).
New property, property being acquired or the target property being brought by Exchanger. (Use to be called Upleg property, now commonly called Phase II property).
An exchange without any time span between the sale and buy.
Name of the taxpayer in U.S. Court of Appeal's case which authorized Delayed Exchanges. The term a "Starker Exchange" is no longer used to describe a Delayed Exchange.
Any real property for any other real property if said property(ies) are held for productive use in trade or business or for investment purposes.
Property is actually deeded to the Intermediary and the Intermediary deeds to the ultimate owner.
Vested owner deeds directly to the ultimate owner. Does not eliminate the duties of the Qualified Intermediary to acquire and transfer the relinquished property and acquire and transfer the Replacement Property.
The replacement property must be identified within 45 days of the close of escrow/closing the relinquished property. This 45 day rule is very strict and is not extended if the 45th day should happen to fall on a weekend or a legal holiday.
The replacement property must be received by the taxpayer within the "Exchange Period", which ends on the earlier of 180 days after the date on which the taxpayer transferred the property relinquished, or the due date for the taxpayers tax return for the taxable year in which the transfer of the relinquished property occurs (such as April 15th). Due to the Taxpayers ability to extend the date of payment, the exchange period is usually 180 days.
Control of the cash proceeds without actual physical possession by Exchanger or their agent.
Taxable situation, whether Cash or Mortgage (Debt Relief).
A deferred Exchange is defined as an exchange in which, PURSUANT TO AN AGREEMENT, the Exchanger transfers the relinquished property and subsequently receives the replacement property. THEREFORE, AN EXCHANGE AGREEMENT IS VITAL.
Term used to identify the requirements to protect the Exchangers money as well as the "Qualified Intermediary."
This term is now used in place of "Non-Simultaneous Exchange" or "Starker Exchange". This is the type of an exchange where the Exchanger utilizes the exchange period described above.
Intermediary is the company who acts as the accommodator in the exchange. A qualified intermediary is identifed as follows:
1.) Not a related party to the Exchanger, (e.g. agent, attorney, broker, etc.);
2.) Receives a fee;
3.) Acquires the relinquished property from the Exchanger; and
4.) Acquires the replacement property and transfers it to the Exchanger.
TAX REFORM ACT OF 1984:
In the Tax Reform Act of 1984, Congress addressed the IRS's continued displeasure with the Starker decision by amending Section 1031 to allow Delayed Exchanges; but only if all of the exchange property is identified and acquired within specific deadlines (see Exchange Period). And most important in the Conference Report accompanying the 1984 Act, Congress specifically reaffirmed that a "sale" followed by reinvestment in like-kind property does NOT qualify for tax deferral under Section 1031. So to qualify for tax deferral, it is still quite essential to carefully structure an exchange to avoid actual or constructive "receipt" of proceeds of sale and to prevent characterization of the transaction as a taxable sale and reinvestment.
Basically the IRS held a hearing to try and "clean up" the Tax Reform Act of 1984 and to provide uniform terminologies, which are included herein. One of the main results for this revision is that IRS finally had a change of attitude toward Delayed Exchanges by accepting them instead of fighting them.
This glossary of information is provided by ASSET PRESERVATION, INC., A QUALIFIED INTERMEDIARY, and JAMES A. SMITH.
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