Is it Possible to Change Ownership in a 1031 Exchange?

Real estate investors who opt for a 1031 exchange to defer capital gains taxes on investment property sales must navigate a range of rules and regulations throughout the exchange process.

A crucial requirement in a 1031 exchange is that the same taxpayer must sell the relinquished property and acquire the replacement asset. However, there are scenarios where a change of ownership can occur in properties involved in a 1031 exchange without invalidating the exchange. Let’s explore these scenarios and provide insights into potential timelines if you intend to change ownership of your replacement property.

Requirements for the Same Taxpayer in a 1031 Exchange

When participating in a 1031 exchange, real estate investors aim to defer capital gains taxes by reinvesting the entire sale proceeds from one investment property into a like-kind replacement property. However, it is crucial to maintain consistency in ownership throughout the exchange process to qualify for the tax deferral benefits.

The Internal Revenue Service (IRS) has established clear rules regarding the same taxpayer requirement in a 1031 exchange. It means that the taxpayer who sells the relinquished property must also be the taxpayer who acquires the replacement property. If there is any change in ownership during or immediately after the exchange, the IRS will not grant tax deferral to either party involved.

To ensure compliance and create a solid paper trail, taxpayers must transfer title from the relinquished property to the buyer and subsequently take possession of the new title for the replacement property. This process establishes a secure framework and serves as a safeguard for the exchange.

It is important to note that any change of ownership soon after the completion of the exchange can potentially invalidate the 1031 exchange and trigger a capital gains tax liability on the original investment property. If you have plans to transfer ownership of an exchanged property, it is advisable to wait until the exchange has become “old and cold.” This typically involves waiting for a significant period of time, allowing several years to pass, and ensuring the exchange is well-established before proceeding with the ownership transfer. By doing so, you can mitigate potential conflicts of ownership and preserve the tax benefits of the exchange.

Potential Scenarios for Ownership Changes in 1031 Exchange Properties

While maintaining consistent ownership is generally required for a 1031 exchange, there are a few situations where a change in ownership may not invalidate the exchange:

Community Property: In states with community property laws, if only one spouse is listed on the title of an exchanged property, both spouses are considered joint owners. This rule applies unless the property was received as a gift or inheritance. It’s important to note that community property laws exist in only nine states.

Death of the Taxpayer: If the taxpayer passes away during the exchange process, IRS regulations allow for the decedent’s estate to continue the exchange and receive tax deferral. Despite the change in ownership due to the taxpayer’s death, the exchange can still proceed.

Delaware Statutory Trust (DST) Exchanges: Investors have the option to participate in 1031 exchanges by acquiring beneficial interests in Delaware Statutory Trusts instead of holding direct title to real property. As long as the same taxpayer is involved, purchasing beneficial interests in a DST can still provide tax deferral benefits.

It’s important to consult with a qualified intermediary or tax professional to ensure compliance with IRS regulations and fully understand the implications of any ownership changes in a 1031 exchange.

Bringing it All Together: Navigating 1031 Exchange Ownership Changes

The 1031 exchange process comes with strict requirements that must be meticulously followed. Investors can defer capital gains taxes by selling and acquiring investment properties without receiving any sale proceeds.

While there are exceptional cases where ownership changes may not invalidate an exchange, it is generally advisable to refrain from transferring ownership of replacement properties until the exchange has aged and regulatory attention has shifted elsewhere. This approach helps minimize potential complications and ensures compliance with the stringent rules governing 1031 exchanges.