How to Defer Taxes with Real Estate Ownership Structures

Upon the sale of an investment property, the real estate owner, or landlord is responsible for paying capital gains taxes. Capital gains taxes are taxes owed on the profit an investor has made on an asset and is calculated by subtracting what an investor paid for the asset (also known as the “basis”) from the sale price. For example, if an investor bought a property for $1 million and then sold it fifteen years later for $2.5 million, the investor would be responsible for paying capital gains on $1.5 million.

However, the Internal Revenue Service (IRS) allows investors to defer capital gains tax if they trade into a new property via a 1031 exchange. This exchange allows investors to trade from one property into one or more “like-kind” properties, so long as the exchange and replacement properties meet all criteria outlined by Internal Revenue Code (IRC) Section 1031. Essentially, investors can avoid capital gains tax by reinvesting.

While many investors refer to this as a “tax-free” exchange, it’s important to emphasize that this exchange is only tax-free until the property sells. Once the property is sold, and the investor receives the profits, the investor is responsible for paying capital gains tax. Good news, though, the property can be exchanged an unlimited number of times so long as it is held for investment purposes, which generally means multiple years.

How to Defer Capital Gains Tax When Selling Investment Property

Per IRC 1031, any property held for investment purposes or for productive use in a trade or business qualifies for a 1031 exchange. Most investors directly own the qualifying real estate, which can include but is not limited to commercial assets, raw land or farmland, and residential rental units. Unfortunately, personal property and real property used for personal purposes does not qualify.

Many times, an investor will sell one property and buy a new one – for example, the investor might sell a multi-tenant retail property and buy a single-tenant asset to reduce management responsibilities. Investors who want to avoid capital gains tax on a land sale can also use a 1031 exchange to roll over profits through the closing of a new land purchase.

In addition, two fractional ownership structures qualify for a 1031 exchange: Delaware Statutory Trusts (DSTs) and Tenants in Common (TICs).

Deferring Capital Gains Tax on Property by Investing in a TIC

A TIC is a legal ownership structure with up to 35 investors who co-own individual, undivided interest in real property.

TICs, however, can be challenging from a management perspective. “TICs are unique in that decisions, even the most mundane like with whom to refinance, require consent of all participating members. TICs are limited to 35 members (or ‘co-owners’), and while that may seem like a small group, in practice, this can complicate decision making. It also means that investors are more hands-on than investors in a REIT [Real Estate Investment Trust] fund or DST – investment vehicles that are fully passive in nature.”

Deferring Capital Gains Tax on Property by Investing in a DST

Due to the complications with TICs, investors looking for truly passive income often invest in DSTs. “A Delaware Statutory Trust … is another structure often used by those wanting to co-invest in real estate. Most DST programs are sponsored by large and experienced national real estate companies and offered through third-party broker dealers. The DST sponsor uses its own capital to acquire the property(s) to be offered within the trust. The DST sponsor then makes the asset(s) available to investors on a fractional ownership basis. DSTs are completely passive in nature to investors.” DSTs are professionally managed and the number of investors who can own fractional interest is unlimited.

A DST qualifies for a 1031 exchange and offers numerous benefits to investors. Beyond access to institutional quality assets, excellent financing, and a truly passive investment – DSTs allow investors to truly diversify their portfolio among asset types and location. For example, if an investor sells a property for $4 million, the investor can participate in four different DSTs – a multifamily property in Texas, a senior housing asset in Florida, a storage facility in Massachusetts, and a healthcare facility in Kansas.

What are Qualified Opportunity Zones, and do they qualify for a 1031 exchange?

A Qualified Opportunity Zone (QOZ) is a designated census tract in an economically distressed area where new investments may be eligible for preferential tax treatment under certain conditions. Introduced as part of the Tax Cuts and Jobs Act of 2017, investors can sell a range of investments, including but not limited to stocks, bonds, real estate, closely held business assets, cryptocurrency, jewelry, and art, and reinvest in a QOZ to access various tax benefits.

To invest in a QOZ, an investor must go through a Qualified Opportunity Zone Fund (QOF). A QOF is an investment vehicle organized as either a partnership or a corporation and must hold at least 90 percent of its assets in QOZ property. 

While an excellent investment vehicle, a QOF does not qualify as “like-kind” property and is one of the few ways an investor can defer capital gains tax without a 1031 exchange. Investors can opt to invest their returns from the sale of their property in a QOZ and defer capital gains. The tax deferral is effective until the QOF investment is sold or exchanged, or until December 31, 2026, whichever is first.

How to Execute a 1031 Exchange when Selling Property

Those interested in selling their real estate and trading into another asset via a delayed exchange – the most common type of exchange – must set up an account with a qualified intermediary (QI) or accommodator before they close on their relinquished property. Once the property closes, the proceeds from the sale are then placed with the QI and the investor has 45 days to identify a replacement property or properties. If at any point the funds are placed with the exchanger, the transaction could become a taxable event.

When identifying a replacement property, an exchanger must identify according to one of the following rules outlined by the IRS:

-       3 Property Rule: An exchanger can identify any three properties for the exchange.

-       200% Rule: An exchanger can identify as many properties as preferred, but the total value of the properties must not exceed 200 percent of the relinquished property’s value.

-       95% Rule: An exchanger can identify as many properties as preferred, but they must close 95 percent of the aggregate value of all properties that have been identified.

The seller has 180 days from the close of the relinquished property to purchase a replacement property, otherwise, the event becomes taxable.

It’s important to note that while a majority of tax-deferred exchanges are delayed or deferred exchanges, other types of exchanges may better suit an individual’s situation. For instance, if circumstances require investors to buy before they sell, they should consider a reverse exchange. Likewise, if their replacement property needs some improvement or full-on construction to meet their needs, they may want to consider an improvement or construction exchange. And lastly, if their construction exchange must exceed the 180-day safe harbor timing requirement, they should inquire about a non-safe harbor exchange.

Real estate investing offers various potential benefits,[MG1]  and those looking to access these benefits while minimizing their responsibility, should speak with a qualified professional about how to invest in an alternative real estate investment.

1031 Risk Disclosure:

·      There’s no guarantee any strategy will be successful or achieve investment objectives;

·      All real estate investments have the potential to lose value during the life of the investments;

·      The income stream and depreciation schedule for any investment property may affect the property owner’s income bracket and/or tax status. An unfavorable tax ruling may cancel deferral of capital gains and result in immediate tax liabilities;

·      All financed real estate investments have potential for foreclosure;

·      These 1031 exchanges are offered through private placement offerings and are illiquid securities. There is no secondary market for these investments.

·      If a property unexpectedly loses tenants or sustains substantial damage, there is potential for suspension of cash flow distributions;

·      Costs associated with the transaction may impact investors’ returns and may outweigh the tax benefits

Opportunity Zone Disclosures

·      Opportunity Zones (“OZ”) are speculative. OZs are newly formed entities with no operating history. There’s no assurance of investment return, property appreciation, or profits. The ability to resell the fund’s underlying assets is not guaranteed. Investing in OZ funds may involve higher risk than investing in other established real estate offerings.

·      Long-term. OZ funds are illiquid and return of capital and realization of gains, if any, from an investment will generally occur only upon partial or complete disposition or refinancing of such investments.

·      Limited secondary market. Although secondary markets may provide a liquidity option in limited circumstances, the amount you will receive is typically reduced.

·      Difficult valuation assessment. The portfolio holdings in OZ funds may be difficult to value. As such, market prices for most of a fund’s holdings will not be readily available.

·      Default consequences. Meeting capital calls to provide pledged capital is a contractual obligation of each investor. Failure to meet this requirement in a timely manner could have adverse consequences including forfeiture of your interest in the fund.

·      Leverage. OZ funds may use leverage in connection with investments or participate in investments with highly leveraged structures. Leverage involves a high degree of risk and increases the exposure of the investments to factors such as rising interest rates, downturns in the economy, or deterioration in the condition of the assets underlying the investments.

·      Unregistered. The regulatory protections of the Investment Company Act of 1940 are not available with unregistered securities.

·      Regulation. It is possible, due to tax, regulatory, or investment decisions, that a fund, or its investors, are unable to realize any tax benefits. Evaluate the merits of the underlying investment and do not solely invest in an OZ fund for any potential tax advantage.