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Introduction to Reverse 1031 Exchanges

You can acquire (purchase) your like-kind replacement property before disposing of (selling) your current relinquished property by structuring a Reverse 1031 Exchange transaction.  The Reverse 1031 Exchange transaction is permitted under Revenue Procedure 2000-37, which was issued by the Department of the Treasury and the Internal Revenue Service on September 15, 2000. 

This tax-deferral strategy is especially beneficial in markets where there is an imbalance between the supply and demand for income producing investment properties or where the relinquished property sale transaction fails and you must acquire your like-kind replacement property first. 

You might also be concerned about the possibility of not being able to locate, identify and acquire suitable like-kind replacement properties within the required deadlines of a forward (regular) 1031 Exchange transaction.  Entering into a forward or regular 1031 Exchange transaction may create undue stress because the you must located and identify his like-kind replacement property with in 45 calendar days of closing on the relinquished property.

A Reverse 1031 Exchange gives you the flexibility to spend as much time as you need to locate suitable like-kind replacement property, without the pressure of the forward 1031 Exchange deadlines.

Reverse 1031 Exchanges Are Complex Tax Structures

1031 Exchange transactions, especially those structured as Reverse 1031 Exchanges, are exceptionally complicated income tax deferral strategies.

The sophisticated Investor will always have a good team of experienced professional advisors, including legal, tax, and financial advisors, along with a knowledgeable broker and professional, experienced, institutional Qualified Intermediary, also referred to in the real estate industry as the 1031 Exchange Accommodator or 1031 Exchange Facilitator, and an Exchange Accommodation Titleholder, with significant technical experience in tax-deferred like-kind Exchange transactions such as Exeter Reverse 1031 Exchange Services, LLC.

Investors should always seek competent legal, financial and tax counsel before entering into any tax-deferred like-kind Exchange transaction.  Exeter Reverse 1031 Exchange Services, LLC is always available to meet, or participate in a conference call, with your professional legal, tax and financial advisors in order to assist you in planning your Reverse Exchange.

Treasury Department Issues Reverse 1031 Exchange Guidance

The Department of the Treasury issued Revenue Procedure 2000-37 on September 15, 2000, which included a number of safe-harbor provisions, or guidelines, for properly structuring Reverse 1031 Exchange transactions.  These Reverse 1031 Exchanges structured pursuant to this Revenue Procedure are referred to as Safe-Harbor Reverse Exchanges.  As you might expect, this Revenue Procedure has significantly increased the number of Reverse 1031 Exchange transactions being conducted by Investors since 2000.

Prior to 2000, Reverse 1031 Exchange transactions were completed with little technical and structural guidance from the Department of the Treasury or the Internal Revenue Service. While the technical guidance provided by the Treasury Department has clarified the issues surrounding Reverse 1031 Exchanges and provided a much higher comfort level than before, they also leave a lot of unanswered questions and create a more complex and costly 1031 Exchange structure.

Parking Property with the Exchange Accommodation Titleholder

In a Reverse Exchange, an Exchange Accommodation Titleholder, also referred to as an EAT, acquires and holds or “parks” legal title to either the Investor’s relinquished or replacement property, and the Qualified Intermediary (Accommodator or Facilitator) administers the tax-deferred like-kind Exchange portion of the transaction.

It is permissible for the Exchange Accommodation Titleholder and the Qualified Intermediary to be the same entity, although it is certainly not advisable.

Exeter Reverse 1031 Exchange Services, LLC acts as the Exchange Accommodation Titleholder and Exeter 1031 Exchange Services, LLC serves as the Qualified Intermediary (Accommodator or Facilitator).

Exchange Accommodation Titleholder (EAT)

The Exchange Accommodation Titleholder or EAT must meet all of the following requirements contained in Revenue Procedure 2000-37:

  • The EAT must own the Qualified Indicia of Ownership, which is usually the legal title to the property, at all times from the date of acquisition of the property until the property is transferred.

  • The EAT cannot be the Investor acting on his own behalf or a disqualified entity such as a related party.

  • The Exchange Accommodation Titleholder must be subject to Federal, and if applicable, state income taxes.  When the EAT is set-up (organized) as and/or if it elects to be treated as a partnership or S corporation, more than 90% of its interests or stock must be owned by partners or shareholders who are subject to federal income tax.

Qualified Indicia of Ownership

Qualified Indicia of Ownership is defined as any of the following:

  • Legal title to the property.

  • Other indicia of ownership of the property that is treated as beneficial ownership of the property under principles of commercial law for the state in which the property is located (i.e. a contract for deed).

  • Interests in an entity that is considered to be a disregarded-entity for Federal income tax purposes, such as a single-member limited liability company; this entity must hold either legal title to the property or other Qualified Indicia of Ownership.

Qualified Exchange Accommodation Agreement (QEAA)

The Exchange Accommodation Titleholder (EAT) and the Investor must execute a formal written Qualified Exchange Accommodation Agreement (QEAA). The QEAA must contain the following terms and conditions as required pursuant to Revenue Procedure 2000-37:

  • The Exchange Accommodation Titleholder is holding or parking title to the property for the Investor’s benefit in order to facilitate a Reverse Exchange pursuant to Section 1031 of the Internal Revenue Code, Section 1.1031 of the Treasury Regulations and Revenue Procedure 2000-37.

  • The Exchange Accommodation Titleholder and the Investor agree to report the acquisition, holding or parking title to, and the ultimate disposition of the property on each of their respective income tax returns as required pursuant to Revenue Procedure 2000-37.

  • The Exchange Accommodation Titleholder will be treated as the beneficial owner of the parked property for all federal income tax purposes.

Non-Arms Length Contractual Arrangements

Revenue Procedure 2000-37 allows the Exchange Accommodation Titleholder and the Investor to enter into a number of non-arms length contractual arrangements to complete a Reverse Exchange transaction.  These non-arms length contractual arrangements facilitate the administration of the Reverse Exchange and eliminate certain risks for the Exchange Accommodation Titleholder and the Investor.

The Investor is responsible for any losses and will receive any profits generated from the property during the time the property is held or parked by the Exchange Accommodation Titleholder.

The property will be leased from the Exchange Accommodation Titleholder by the Investor via a triple-net lease.  Once leased to the Investor, the Investor will assume management responsibilities of the property, or may retain a third-party property management company while the property is parked by the Exchange Accommodation Titleholder.

Deadlines for Identifying the Relinquished Property and Transferring Parked Property

Deadlines for identifying the relinquished property to be disposed of and transferring or conveying title of the parked property by the Exchange Accommodation Titleholder are the same as those for a forward tax-deferred like-kind Exchange transaction.

Investors have 45 calendar days after the transfer (conveyance of title) of the parked replacement property to the Exchange Accommodation Titleholder to formally identify the property they intend to relinquish or dispose of as part of Reverse Exchange transaction. 

Identification is not necessary when the relinquished property is parked by the Exchange Accommodation Titleholder because the tax-deferred like-kind Exchange has already been completed at the beginning of the transaction.  This will be explained in more detail shortly.

In either case, the relinquished property must be sold and transferred (conveyed) to the buyer within 180 calendar days after the parked property was transferred (conveyed) to the Exchange Accommodation Titleholder.

These deadlines can not be extended by the Investor for any reason. 

Reverse Tax-Deferred Like-Kind Exchange Structures

Investors must decide whether to park the replacement property or relinquished property with the Exchange Accommodation Titleholder.  This decision will vary from transaction to transaction and not all Qualified Intermediaries/Exchange Accommodation Titleholders will administer both structures.  It will typically depend on whether the lender will allow the Exchange Accommodation Titleholder to acquire and park title to the replacement property when the lender is also using the same property as collateral for the financing.

There are other factors that may play a role in determining which property will be parked by the Exchange Accommodation Titleholder as well, including:

Operational Considerations.  Does parking title to either property create any problems with the ongoing operation of the property?  Will a change in legal ownership affect any vendor or tenant relationships?

Risk Management Considerations.  Are there any specific risks to the Exchange Accommodation Titleholder that may prohibit the EAT from accepting and parking title?  Have there been any hazardous or toxic substances used or stored on the property?  Do the ongoing operations of the property put the EAT at risk?

Insurance Coverage Considerations.  When property is parked with the Exchange Accommodation Titleholder it is usually held by the EAT in a single-member limited liability company and this may pose problems when attempting to obtain insurance coverage for the EAT during the Reverse Exchange transaction, especially if there will be construction during the course of completing the transaction.

Financing Considerations.  Properties transferred or conveyed to the Exchange Accommodation Titleholder that have existing financing may risk triggering due on sale clauses with the current lender.

Liquidity Concerns.  In order to defer 100% of the applicable depreciation recapture and capital gain income tax liabilities, Investors must meet three requirements when structuring tax-deferred like-kind Exchanges: (1) Exchange or trade equal or up in value; and (2) reinvest 100% of the Investors equity (net cash proceeds from sale of relinquished property); and (3) replace any debt with new debt on the replacement property.  The Investor’s equity is trapped in the relinquished property because it is not sold until after the replacement property is acquired which may create liquidity or financing challenges for the Investor when structuring a Reverse Exchange transaction.

Structuring the Reverse Exchange transaction with the Exchange Accommodation Titleholder acquiring and parking legal title to the replacement property will usually be the most beneficial structure from an Investor’s perspective.

However, given the considerations outlined above, there are often situations when acquiring and parking title to the replacement property in the name of the Exchange Accommodation Titleholder is not a practical structure.  In these cases, title to the relinquished property must therefore be transferred (conveyed) to and parked with the Exchange Accommodation Titleholder.

These two Reverse Exchange structures are frequently referred to as the Exchange Last Structure (parking title to the replacement property) and the Exchange First Structure (parking title to the relinquished property).

The best way to analyze and understand a Reverse Exchange transaction is to view it as two separate transactional parts with each separate from the other and yet both contractually integrated to form the Reverse Exchange transaction.

Parking Property and a Simultaneous Tax-Deferred Like-Kind Exchange

Contrary to popular opinion Revenue Procedure 2000-37 is not a Reverse Exchange Revenue Procedure.  It really provides safe-harbor guidelines for structuring Reverse Exchange transactions by utilizing a “parking” structure or strategy.  It is commonly called a Reverse Exchange because it allows the Investor to acquire his like-kind replacement property first and then dispose of his relinquished property at a later date.

The term Reverse Exchange is therefore really a misnomer because it actually consists of: (1) a parking transaction where either the replacement property or the relinquished property is acquired and held or parked by the Exchange Accommodation Titleholder; and (2) a simultaneous tax-deferred like-kind Exchange (not a true Reverse Exchange) occurs either at the beginning (Exchange First Structure) or at the end (Exchange Last Structure) of the Reverse Exchange transaction.

Exchange Last Parking Structure — Parking Title to the Replacement Property

The preferred Reverse Exchange strategy is the Exchange Last Structure where the Exchange Accommodation Titleholder acquires and parks title to the replacement property.

This structure provides the Investor with a great deal more flexibility in planning the acquisition and financing of the like-kind replacement property because the actual tax-deferred like-kind Exchange has not yet occurred.  We do not care at this point if the Investor has Exchanged or traded equal or up in value, has reinvested his equity (cash) or has replaced any necessary debt on the like-kind replacement property because the only thing that has been completed so far is the acquisition and parking of the like-kind replacement property by the Exchange Accommodation Titleholder. 

These tax-deferred like-kind Exchange requirements are easily addressed at the back end of the transaction when the simultaneous tax-deferred like-kind Exchange occurs.

Acquiring and “Parking” the Like-Kind Replacement Property

Investors enter into a legal agreement called the Qualified Exchange Accommodation Agreement (“QEAA”) with an Exchange Accommodation Titleholder (“EAT”).  Exeter Reverse 1031 Exchange Services, LLC serves in the capacity of the Exchange Accommodation Titleholder.

The Exchange Accommodation Titleholder establishes a new single-member limited liability company (“LLC”) or other type of single-member special purpose entity (“SPE”) for each Reverse Exchange transaction for the sole purpose of holding or “parking” title to the like-kind replacement property.

It is important for the Investor to select and get the Exchange Accommodation Titleholder involved before the transaction closes.  Once the Qualified Exchange Accommodation Agreement has been signed the Investor will assign the Purchase and Sale Agreement and any related escrow instructions or other transactional documents (if any) for the like-kind replacement property to the Special Purpose Entity set-up by the Exchange Accommodation Titleholder in preparation for closing the transaction. 

The Investor will either loan and/or arrange for third-party financing for the acquisition of the like-kind replacement property to the Special Purpose Entity set-up by the Exchange Accommodation Titleholder.  At the close of the like-kind replacement property transaction, the Exchange Accommodation Titleholder will receive and “park” title to the like-kind replacement property.

Interim Activity While Property is Parked with EAT

The “parked” like-kind replacement property is typically leased by the Exchange Accommodation Titleholder to the Investor using a triple net lease while the replacement property is held or “parked” by the EAT. 

The ability to lease the “parked” like-kind replacement property to the Investor during this time gives the Investor the ability to operate the property, including the ability to lease the property, collect the rents and income, and pay the expenses.  The Investor is not permitted to depreciate the property while it is “parked” by the Exchange Accommodation Titleholder since they do not technically own it yet (remember that the Investor still owns and is depreciating the relinquished property).

Any lease payments made by the Investor to the EAT are offset by any debt payments owed and made by the EAT to the lender or financing company. The lease payments may cover any debt service owed on outside financing.  This structure is designed to be tax neutral for the Exchange Accommodation Titleholder so that any and all taxable elements will be borne by the Investor.

The Investor must identify his relinquished property within 45 calendar days after the close of the replacement property transaction, and legal title to the replacement property has been transferred or “parked” with the Exchange Accommodation Titleholder.

The Investor will then assign the Purchase and Sale Agreement and any related escrow instructions or other transactional documents (if any) for the disposition of the relinquished property to Exeter 1031 Exchange Services, LLC, as the Qualified Intermediary for the Investor.  The Exchange funds at the close of the relinquished property transaction will be sent to the Qualified Intermediary.

Acquisition of the Replacement Property from the EAT

The Qualified Intermediary will use these tax-deferred like-kind Exchange funds to acquire the “parked” like-kind replacement property from the Exchange Accommodation Titleholder.

The Qualified Intermediary acquires the “parked” like-kind replacement property by executing a Purchase and Sale Agreement.  The Investor will receive their “parked” replacement property or 100% of the membership interests or ownership in the Special Purpose Entity that holds legal title to the “parked” replacement property from the Exchange Accommodation Titleholder by completing a simultaneous Exchange. The Exchange Accommodation Titleholder uses the net proceeds received from the sale of the relinquished property to pay down the loan to the third-party lender and/or the Investor.

The Investor should obtain their lender’s approval prior to entering into an “Exchange Last” Reverse Exchange transaction if he needs to secure institutional financing. The SPE/LLC will be the borrower on the loan since the SPE/LLC holds title to the property. The Exchange Accommodation Titleholder will typically sign the loan documents on a non-recourse basis and the Investor can guarantee the loan documents on a recourse basis.

Make sure that your lender understands that you are contemplating a Reverse Exchange transaction and not a regular forward tax-deferred like-kind Exchange.  I have seen lenders say yes all too often only to say no just a few days before the closing when they find out that the Exchange Accommodation Titleholder will be holding title to the like-kind replacement property.  I recommend that the Investor, lender and Exeter 1031 Exchange Services, LLC schedule a conference call as early as possible to discuss the specific issues with a Reverse Exchange.

Reverse Improvement Tax-Deferred Like-Kind Exchange

The “Exchange Last” structure can be utilized in a Reverse improvement tax-deferred like-kind Exchange structure as well (sometimes referred to as build-to-suit or construction tax-deferred like-kind Exchange). In this type of tax-deferred like-kind Exchange, the Investor can build a new structure, improve an existing structure or retrofit the property before selling their relinquished property.

When to Use the Exchange Last Parking Structure

Investors typically select the “Exchange Last” structure for a Reverse Exchange transaction when they are purchasing the like-kind replacement property for all cash or the seller is providing short-term financing (seller-carry back financing).

The following table will help you walk through the steps of an “Exchange Last” structure.

Exchange Last Parking Structure — Parking Title to the Replacement Property


 

Investor enters into a Qualified Exchange Accommodation Agreement with the Exchange Accommodation Titleholder.

 

Exchange Accommodation Titleholder forms limited liability company (LLC) or other special purpose entity to acquire title to property.

 

Investor assigns its rights under Purchase Contract for like-kind replacement property to Exchange Accommodation Titleholder and provides written notification to all parties involved in the transaction.

 

Investor advances money from itself and/or obtains third-party financing for the limited liability company (LLC) to fund the purchase of the like-kind replacement property. The loan is non-recourse to the LLC and its member but can be guaranteed by the Investor on a recourse basis.

 

Exchange Accommodation Titleholder acquires title to like-kind replacement property directly from seller and gives Investor and/or other lender a note(s) that is secured by a deed of trust or mortgage on the replacement property.

 

Under the QEAA, Investor leases replacement property from Exchange Accommodation Titleholder under a triple-net lease. Investor’s monthly rent (if any) may cover any debt service owed on outside financing.

 

Investor identifies relinquished property within 45 calendar days after the closing and parking of the like-kind replacement property.

 

Investor executes Sales Contract with buyer to sell relinquished property.

 

Investor executes Tax-Deferred Exchange Agreement with Qualified Intermediary

 

Investor assigns its rights under the Sales Contract to Qualified Intermediary and gives written notice to buyer.

 

Relinquished property closes with Investor direct deeding property to purchaser and closer disbursing all Exchange proceeds from relinquished property to Qualified Intermediary.

 

Investor and Exchange Accommodation Titleholder execute Purchase and Sales Contract for like-kind replacement property.

 

Investor assigns rights under Purchase and Sales Contract for like-kind replacement property to Qualified Intermediary.

 

At closing, Qualified Intermediary pays off Investor and/or lender in satisfaction of note(s) given by Exchange Accommodation Titleholder to Investor and/or lender.  Closing must be simultaneous with the relinquished property closing.

 

Qualified Intermediary instructs Exchange Accommodation Titleholder to either transfer title to like-kind replacement property directly to Investor or to transfer 100% of the membership interest in Exchange Accommodation Titleholder to Investor, completing a simultaneous Exchange.

 

Exchange Accommodation Titleholder will usually not hold title of the like-kind replacement property for more than 180 calendar days.


Issues with Exchange Last Parking Structure

Cash Boot Potential: If the amount of the down payment advanced by the Investor to the Exchange Accommodator Titleholder (initial equity) used to acquire the like-kind replacement property is less than the equity generated from the sale of the relinquished property the Investor may have accidentally created cash boot and will recognize depreciation recapture and/or capital gain income tax liabilities to the extent of the cash boot. (Note: To qualify for 100% tax-deferral in a tax-deferred like-kind Exchange, the equity in the like-kind replacement property must be equal to or greater than the equity in the relinquished property.)

The Exchange Last parking structure is the only one of the two that would allow the Exchange Accommodation Titleholder to contribute additional cash if the equity from the relinquished property is more than the down payment on the like-kind replacement property to avoid a tax liability.

Financing: If seller carry back financing is not available, then you must pay cash for the like-kind replacement property or arrange institutional or other third-party financing. `Obtaining third-party financing, especially institutional financing, is often difficult because of the parking structures. If third-party financing is available, the Exchange Accommodation Titleholder will only execute a non-recourse loan and deed of trust or mortgage that will typically be guaranteed by you. When you take title to the like-kind replacement property, you must assume any outstanding loan balances on a subject to basis.

Exchange First Parking Structure — Parking Title to Relinquished Property

In an Exchange First parking structure the relinquished property is acquired, held or parked by the Exchange Accommodation Titleholder and a simultaneous or concurrent tax-deferred like-kind Exchange transaction is completed by selling (transferring or conveying) the relinquished property to the Exchange Accommodation Titleholder and simultaneously acquiring and closing on the like-kind replacement property.

The relinquished property may not be transferred to a disqualified entity such as a related party of the Investor or to an agent of the Investor. When you find a buyer for the parked relinquished property, the Exchange Accommodation Titleholder deed title of the relinquished property directly to the buyer at the close of the transaction and forwards any net sales proceeds to the Investor in repayment of the funds advanced to complete the Reverse Exchange. 

In the “Exchange First” parking structure, the Investor will assign a Purchase and Sale Agreement for the relinquished property to the Qualified Intermediary.  The Investor will enter into a Qualified Exchange Accommodation Agreement (“QEAA”) with the Exchange Accommodation Titleholder. The Exchange Accommodation Titleholder sets up a single-member limited liability company (LLC) or other special purpose entity to acquire, hold or park title to the relinquished property.

The Investor will sell the relinquished property to the Exchange Accommodation Titleholder in order to complete the simultaneous tax-deferred like-kind Exchange transaction. The Investor and/or his lender will loan funds to the Exchange Accommodation Titleholder, and the Exchange Accommodation Titleholder will execute a note and deed of trust or mortgage in favor of the lender.

The Exchange Accommodation Titleholder uses this financing to acquire, hold or park title to the relinquished property from the Qualified Intermediary. The Qualified Intermediary uses these advanced funds received from the Exchange Accommodation Titleholder to purchase the like-kind replacement property on your behalf. The like-kind replacement property is conveyed directly to the Investor simultaneously with the conveyance of the relinquished property to the Exchange Accommodation Titleholder and the simultaneous tax-deferred like-kind Exchange is completed.

Once a buyer for the relinquished property is found, the proceeds from the sale of the relinquished property are used to satisfy any financing obtained to complete this Reverse Exchange.

When to Use Exchange First Parking

An “Exchange First” parking structure may be a more viable option than an “Exchange Last” when you need to obtain conventional institutional financing on the like-kind replacement property.

Lenders may have difficulty lending on property that is held by a third-party such as an Exchange Accommodation Titleholder on behalf of the Investor.

Exchange First Parking Structure — Parking Title to the Relinquished Property

 

Investor selects relinquished property from his portfolio.

 

Investor executes a Qualified Exchange Accommodation Agreement (QEAA) with Exchange Accommodation Titleholder.

 

Exchange Accommodation Titleholder forms an limited liability company (LLC) or other special purpose entity to park title to relinquished property.

 

Exchange Accommodation Titleholder and Investor execute Purchase and Sale Agreement for the sale of the relinquished property to the Exchange Accommodation Titleholder.

 

Investor advances funds to or arranges for third-party financing for the Exchange Accommodation Titleholder to “purchase” the Investor’ relinquished property.

 

Investor executes Tax Deferred Like-Kind Exchange Agreement with Qualified Intermediary (Exeter 1031 Exchange Services, LLC).

 

Investor assigns Purchase and Sale Agreement for relinquished property to Qualified Intermediary and notifies purchaser (Exchange Accommodation Titleholder).

 

Exchange Accommodation Titleholder disburses funds advanced or loaned to it directly to the Qualified Intermediary; and the Qualified Intermediary instructs Investor to convey relinquished property to Exchange Accommodation Titleholder.

 

Investor enters into a Purchase and Sale Agreement for their like-kind replacement property.

 

Investor assigns Purchase and Sale Agreement for like-kind replacement property to Qualified Intermediary and the Seller of the like-kind replacement property.

 

Qualified Intermediary disburses loan funds provided by Exchange Accommodation Titleholder to seller of the like-kind replacement property and directs seller to deed the like-kind replacement property directly to the Investor. Exchange is now completed.

 

Exchange Accommodation Titleholder leases the relinquished property to the Investor under a triple-net lease.

 

Investor enters into Purchase and Sales Agreement with buyer for Investor’s relinquished property that is now being held by the Exchange Accommodation Titleholder.

 

Investor assigns Purchase and Sales Agreement to Exchange Accommodation Titleholder and notifies buyer of the assignment.

 

Exchange Accommodation Titleholder closes on relinquished property sale and uses sales proceeds from relinquished property to satisfy a note(s) given to Investor and/or other lender.

 

Exchange Accommodation Titleholder cannot hold the relinquished property for more than 180 calendar days.


Issues with “Exchange First” Parking Structures

Cash Boot Potential: If the equity in the relinquished property is greater than the cash invested in the like-kind replacement property, then the Investor may incur depreciation recapture and capital gain income tax liabilities. Since the Investor has already purchased his like-kind replacement property and completed a simultaneous tax-deferred like-kind Exchange up front, he will not have the opportunity to balance his tax-deferred like-kind Exchange by investing additional equity at the back end when his relinquished property ultimately sells. For this reason, having the Exchange Accommodation Titleholder hold the like-kind replacement property under an Exchange Last Parking Structure is usually the preferred method as opposed to the Exchange First Parking Structure.

Relinquished Property Loan: By transferring the relinquished property to the Exchange Accommodation Titleholder, the Investor runs the risk of triggering the due-on-sale clause in his relinquished property note. This is one of the reasons that many Exchange Accommodation Titleholders will not acquire, hold and park title to the Investor’s relinquished property.

Pre-Exchange Due Diligence

Before setting up a Reverse Exchange, the Exchange Accommodation Titleholder will require the Investor to provide the following documents and information:

  • Financial statements and/or Federal income tax returns for the last two or three income tax years;

  • Grant deed for the relinquished properties showing legal title as currently held by the Investor;

  • Binder providing proof of property, casualty and liability insurance coverage and naming the limited liability company (LLC) as the named insured and the Exchange Accommodation Titleholder (EAT) and the Investor as additional named insured;

  • Phase I Environmental Assessment report issued within the last 6 months.  The report must indicate that the real property is free of contamination and be certified to the Exchange Accommodation Titleholder.  This is typically required on all types of properties, although certain Exchange Accommodation Titleholders may waive this requirement for certain types of property zoned residential; and

  • Title insurance binder naming the Exchange Accommodation Titleholder as the named insured (real property).  The Investor should inquire as to how the title insurance policy will be assigned to the Investor upon completion of the Reverse Exchange transaction.  

Issues with Reverse Tax-Deferred Like-Kind Exchanges

The costs surrounding Reverse Exchanges are considerably more than those for a forward tax-deferred like-kind Exchange transaction.

Fees for Reverse Exchange transactions are higher than fees for forward, delayed tax-deferred like-kind Exchange transactions primarily due to the significantly increased risk that is assumed by the Exchange Accommodation Titleholder (EAT) when acquiring, holding and “parking” legal title to the Investor’s relinquished or replacement property.

The Investor will also incur additional title insurance, environmental, loan, legal, property, casualty and liability insurance, and escrow/closing costs depending on the structure of the Reverse Exchange.

There is also the potential for double taxation of state, county or local taxing authorities such as transfer taxes, property taxes due to incorrect or premature reassessment when either the relinquished or the replacement property is conveyed to the Exchange Accommodation Titleholder and then transferred to the buyer (“Exchange First”) or to the Investor (“Exchange Last”). 

However, in a recent Private Letter Ruling (PLR 200148042), the Internal Revenue Service approved an express declaration of agency for all purposes except federal income tax purposes that could be included in the Exchange Accommodation Titleholder’s Qualified Exchange Accommodation Agreement with out jeopardizing the qualification of the transaction as a Reverse Exchange.

Conveying title to property from an agent to a principal is not a taxable event in most taxing jurisdictions.  While the Private Letter Ruling only pertains to the ruling obtained by the specific taxpayer in this case, this nonetheless provides some insight into the Internal Revenue Service’s views on the matter.

Investors can not depreciate the like-kind replacement property acquired, held and parked by the Exchange Accommodation Titleholder until the Investor has acquire title to the like-kind replacement property or has transferred the relinquished property to the Exchange Accommodation Titleholder. 

The Exchange Accommodation Titleholder does not depreciate the property acquired, held and parked.  The property is held on its books as inventory held for ultimate disposition. 

Alternative Strategies to Reverse 1031 Exchanges

After reviewing the costs involved in a Reverse Exchange, Investors may want to consider approaching the seller of the like-kind replacement property to see if the transaction can be delayed until a buyer can be found for the relinquished property.  This way the transaction can be restructured into a forward 1031 Exchange. 

The Investor may want to consider securing his like-kind replacement property by including contingency language in the purchase and sale agreement so that the acquisition closing can be delayed until the relinquished property is in a position to close concurrently with the replacement property. 

The payment and unconditional release of an earnest money deposit to the seller on a non-refundable basis may be sufficient to persuade the seller to cooperate.  The seller may prefer an additional payment such as an option fee to extend the close of escrow, which could be cheaper than the Reverse 1031 Exchange transaction. 

The seller may not be willing to cooperate in delaying the close of escrow, but perhaps would be interested in carrying back some financing in the short-term to assist the Investor with his Reverse 1031 Exchange transaction. 

Exeter 1031 Exchange Services, LLC is always available to assist Investors with complex Reverse 1031 Exchange transactions.  We would be happy to meet with the other parties involved with the Investor's Reverse 1031 Exchange such as the lender, accountant, attorney, and/or escrow officer, in order to assist in structuring the Reverse 1031 Exchange.

In any event, you should always seek the advice of competent legal, tax and financial counsel prior to entering into any 1031 Exchange transaction.  Contact us for more complete information. 

 

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