1031 Exchange Under Attack

Proposed Tax Reforms Includes Ending 1031 Exchange

The ninety two year old 1031 tax exchange is once again up for abolishment in current tax reform proposals.  Congressman Dave Camp, Chair of the US House or Representatives Committee on Ways and Means, has a bipartisan tax reform group tasked with identifying eleven subjects including real estate tax matters as potential revenue raisers.  Senator Max Baucus, Chair of the Senate Finance Committee has targeted the elimination of the 1031 exchange as one of many means of tax reform.

Section 1031 "like-kind" exchanges is estimated to cost of $42 billion over the five year period 2012-2016 by the Joint Committee on Taxation (JCT).  Estimated by the JCT in prior years estimated the tax deferral to be $16.2 billion over the five year period 2010-2014.  The two fold difference is attributed to a change in accounting methodology.

The Treasury Department 1031 Regulation is enforced by the Internal Revenue Service in Section 1.1031 stating that "no gain or loss shall be recognized on the exchange of property held for productive use in trade business or investment, if such property is exchange solely for property of like ind which is to be held for productive use in trade or business or for investment."  Individuals, married partnerships, trusts, corporations use 1031 exchanges when selling and replacing real and personal property to defer federal and state capital gain and recaptured depreciation taxes.  The taxes are deferred until the replacement property is sold and not replaced, effectively cashing out.  The economic position of the taxpayer does not change in a 1031 exchange; they have the same amount of cash and debt if not more.  If the taxpayer receives cash or reduction in debt, then a tax is due.

Sixty percent of 1031 exchanges involve properties for sales of less than one million dollars with a third for less than $300,000 owned by small investors and businesses.  The majority of investors are individuals and small businesses with exchange proceedings of less than $300,000.  Corporate entities do utilize 1031 exchanges to replace worn equipment and reposition low income producing properties with higher income producing properties.  In the Florida Panhandle, from Perdido Key West of Pensacola, Florida to Panama City Beach, Florida, investment properties saturate the real estate market with the local counties benefiting from the country bed taxes on properties held for short term rentals.  Titleholders are individuals, husbands and wives, trust and small limited liability companies generating business for Realtors, lenders, contractors, title companies, attorneys, CPAs, appraisal, pest and survey companies.

Positive Impact of 1031 Exchanges

• Encourages the rate by which money is move from one transaction to another; otherwise, known as the velocity of money.
• Property located in the US must be exchanged with property located in the US requiring reinvestment in the US rather than overseas.
• Stimulates taxpayers to acquire properties of equal or greater value often times greater including improvements in real estate.

What a 1031 is Not

• A tax loop hole for the rich.  Ninety percent of investors are individuals, families and trusts within a seven hour driving distance to their investments.
• A tax scheme robbing US taxpayers and government, rather a temporary tax deferral with the tax due when replacement property is cashed out or due upon decedent's taxable estate.

Negative Impact of 1031 Exchange Elimination

• Fewer real estate transactions, real and personal property will be held longer with many families electing to hold until death.
• Increase in depreciation deductions offsetting income tax revenue.
• Businesses will downsize due to no longer having access to or qualify for loans and paying tax on the gain or depreciation recapture of relinquished or old asset.

1031 exchange provide significant benefits to the taxpayer and local economies where the asset is located encouraging reinvestment versus the hoarding of cash and removing those dollars from the economy.  The 1031 exchange allows many others to benefit in the transaction before ultimately deposited with the US Treasury.