K A R L A   C O H N   &  Associates Realty, Inc.
  • K A R L A C O H N & Associates Realty, Inc.


  • Personal, Knowledgeable Service

  • Contact Info - Tel: (619) 296-6988 / Fax: (619) 692-2093 / Dir: (619) 788-7555 / email me


Selling Your Home

Ready to Move Elsewhere:

Ask us about trusted colleagues in Idaho and Phoenix, Arizona markets. You might just be ready for that vacation or retirement home elsewhere.  We also serve the Palm Springs area.

Choosing an Agent

Most of us find that selling a home is one of the biggest financial decisions we will make. It can feel overwhelming with the many new requirements and laws pertaining to the selling and purchasing of real estate. Choosing a Realtor you can trust and one that will market and sell your home can make all the difference. The stressful process can be fun and exciting. As a respected Broker in the San Diego Metro and coastal areas Karla Cohn and Associates, Inc. will make sure your home is sold in the least amount of time for the best price possible.

We routinely analyze and determine home values in the San Diego market. We have been in this business 20-plus years. We can help you determine exactly what your home is worth in the current market. Remember, prices from last month might not be those that will work for this month. As experienced professionals, we'll market your home and negotiate on your behalf to sell your home for the best price possible.

We will aggressively market your home not just locally, but on a national basis. Our national web affiliates are available to market your home in other real estate markets. Who doesn't want to come to San Diego?

We know how to help you look at your home with a new eye for selling. We will come to your home and personally advise you of how "stage" your home to assist with appeal to the most potential buyers.

We will be sure you are informed about every step of the process. After all, it is your home and you are in control. We are here to make sure the process flows smoothly!

Get Ready

                   Step 1: Get a "Value Wizard" report for your property:


Step 2: Home improvements to increase value

There are two reasons for pursuing home improvement projects:

Just Want To Do It — You want some new features in a home to improve your family's quality of life, but you don't want to leave your current home.

Really Need To Do It — You want to make your home more marketable to maximize return (or minimize loss) and speed up the sale process.

We suggest you stick to the home improvement projects that will primarily to increase the property's salability. In turn, this often increases your return on investment. A good real estate agent can advise you of possible improvements that will attract more potential buyers and also pay for themselves either through increasing the home's value or through shortening the time it takes to sell the home.

Here we're typically talking about projects such as:

  • painting — either because the existing paint is in bad shape or is an unusual color;
  • replacing carpets —again because of age, color or style;
  • repairing or resurfacing a cracked driveway or sidewalk;
  • refacing kitchen cabinets; or
  • trimming or removing overgrown or unattractive landscaping.
  • While spending several thousand dollars on your home right before you sell it might not sound very appealing, it's not uncommon for the right work to more than pay for itself in a higher selling price and shorter marketing time.

    Consult with an experienced real estate agent to learn what improvements will make your home more marketable in comparison to similar properties that are now —or recently have been — on the market in your area.


    More Than You Ever Want to Know About  . . . .

    1031 Exchange

    Note: Always consult a tax professional in addition to your real estate professional when considering a 1031 exchange. 

    The 1031 Exchange is a tax-deferred strategy (referring to section 1031 of the IRS tax code) for real estate investors which allows you to avoid income taxes on the sale of a property when the intention is to reinvest the proceeds in a similar or like-kind property. Also called the Tax-Deferred Exchange, it is a long-term strategy with multiple restrictions and benefits. As you'll see, it can be quite complicated and I recommend that you seek advice from both your Realtor© and tax professional and/or attorney before attempting an exchange. However, the benefits are well worth the effort and it is never too early to begin thinking of tax strategies for your next investment.  

    Advantages:  The Advantage of a 1031 Exchange is the ability of a taxpayer to sell income, investment or business property and replace with like-kind replacement property without having to pay federal income taxes on the transaction. A sale of property and subsequent purchase of a replacement property doesn't work, there must be an Exchange. Section 1031 of the Internal Revenue Code is the basis for tax-deferred exchanges. The IRS issued "safe-harbor" Regulations in 1991 which established approved procedures for exchanges under Code Section 1031. Prior to the issuance of these Regulations, exchanges were subject to challenge under examination on a variety of issues. Since issuance of the 1991 Regulations, tax-deferred exchanges are easier, less expensive and safer than ever before.

    Disadvantages:  Reduced basis for depreciation in the replacement property. The tax basis of replacement property is essentially the purchase price of the replacement property minus the gain which was deferred on the sale of the exchange property as a result of the exchange.

    Exchange Techniques. There is more than one way to structure a tax-deferred exchange" under Section 1031 of the Internal Revenue Code. However, the 1991 Regulations established safe harbor procedures which include the use of an Intermediary, direct deeding, the use of qualified escrow accounts for temporary holding of "exchange funds" and other procedures which now have the official blessing of the IRS. Therefore, it is desirable to structure exchanges so that they can be in harmony with the 1991 Regulations.

    Intermediary Services. Exchanges commonly employ the services of an Intermediary with direct deeding.  Exchanges can also occur without the services of an Intermediary when parties to an exchange are willing to exchange deeds or if they are willing to enter into an Exchange Agreement with each other. However, two-party exchanges are rare since in the typical Section 1031 transaction, the seller of the replacement property is not the buyer of the taxpayer's exchange property.

    Home exchanges may qualify for both the home sale exclusion and like-kind deferral.  Rev Proc 2005-14, 2005-7 IRB IRS has issued Rev Proc 2005-14 making it clear that, in certain circumstances, an exchange of a home can qualify for both the Code Sec. 121 home sale exclusion and Code Sec. 1031 like-kind exchange deferral treatment. 

    A homeowner may exclude up to $250,000 ($500,000 on a joint return) of gain from the sale or exchange of a home if he owned and used the property as his principal residence, for at least 2 of the 5 years before the sale or exchange. (Code Sec. 121) The home-sale exclusion may apply to a home office, or other business portion of a home, but not to certain depreciation from the business use. (Code Sec. 121(d)(6))

    A property owner generally would not recognize gain upon the exchange of business property for replacement property of a like-kind. (Code Sec. 1031) The property owner must recognize gain to the extent he receives cash or property that is not of a like-kind ("boot"). (Code Sec. 1031(b))

    Example 1

    (i) Taxpayer A buys a house for $210,000 that A uses as A's principal residence from 2000 to 2004. From 2004 until 2006, A rents the house to tenants and claims depreciation deductions of $20,000. In 2006, A exchanges the house for $10,000 of cash and a townhouse with a fair market value of $460,000 that A intends to rent to tenants. A realizes gain of $280,000 on the exchange.

    (ii) A's exchange of a principal residence that A rents for less than 3 years for a townhouse intended for rental and cash satisfies the requirements of both §§ 121 and 1031. Section 121 does not require the property to be the taxpayer's principal residence on the sale or exchange date. Because A owns and uses the house as A's principal residence for at least 2 years during the 5-year period prior to the exchange, A may exclude gain under § 121. Because the house is investment property at the time of the exchange, A may defer gain under § 1031.

    (iii) Under section 4.02(1) of this revenue procedure, A applies § 121 to exclude $250,000 of the $280,000 gain before applying the nonrecognition rules of § 1031. A may defer the remaining gain of $30,000, including the $20,000 gain attributable to depreciation, under § 1031. See section 4.02(2) of this revenue procedure. Although A receives $10,000 of cash (boot) in the exchange, A is not required to recognize gain because the boot is taken into account for purposes of § 1031(b) only to the extent the boot exceeds the amount of excluded gain. See section 4.02(3) of this revenue procedure.

    These results are illustrated as follows.

    Amount realized $470,000
    Less: Adjusted basis $190,000
    Realized gain $280,000
    Less: Gain excluded under § 121 $250,000
    Gain to be deferred $ 30,000

    (iv) A's basis in the replacement property is $430,000, which is equal to the basis of the relinquished property at the time of the exchange ($190,000) increased by the gain excluded under § 121 ($250,000), and reduced by the cash A receives ($10,000)). See section 4.03 of this revenue procedure.

    The Basic Rules for a 1031 Exchange

    The Exchange Property Must Be Qualifying Property. Qualifying property is property (or equipment) held for investment purposes or used in a taxpayer's trade or business. Investment property includes real estate, improved or unimproved, held for investment or income producing purposes. Property used in a taxpayer's trade or business includes his office facilities or place of doing business, as well as equipment used in his trade or business.

    Property Which Does Not Qualify For a 1031 Exchange includes:

    - A personal residence
    - Land under development
    - Construction or fix/flips for resale
    - Property purchased for resale
    - Inventory property

    -Corporation common stock
    -Partnership interests

    As explained below, common stock may (or may not) include ditch stock which is sold with farm land.

    Replacement Property Title Must Be Taken In The Same Names As The Exchange Property Was Titled.

    The Replacement Property Must Be Like-Kind. For real estate exchanges, like-kind replacement property means any improved or unimproved real estate held for income, investment or business use. Improved real estate can be replaced with unimproved real estate. Unimproved real estate can be replaced with improved real estate. A 100% interest can be exchanged for an undivided percentage interest with multiple owners and vice-versa. One property can be exchanged for two or more properties. Two or more properties can be exchanged for one replacement property. A duplex can be exchanged for a four-plex. Investment property can be exchanged for business property and vice versa. However, as referenced above, a taxpayer's personal residence cannot be exchanged for income property, and income or investment property cannot be exchanged for a personal residence, which the taxpayer will reside in.
    Any Boot Received In Addition To Like Kind Replacement Property Will Be Taxable (to the extent of gain realized on the exchange). This is okay when a seller desires some cash or debt reduction and is willing to pay some taxes. Otherwise, boot should be avoided in order for a 1031 Exchange to be completely tax-free.

    The term "boot" is not used in the Internal Revenue Code or the Regulations, but is commonly used in discussing the tax consequences of a Section 1031 tax-deferred exchange. Boot received is the money or the fair market value of "other property" received by the taxpayer in an exchange. Money includes all cash equivalents plus liabilities of the taxpayer assumed by the other party, or liabilities to which the property exchanged by the taxpayer is subject. "Other property" is property that is non-like-kind, such as personal property received in an exchange of real property, property used for personal purposes, or "non-qualified property." "Other property" also includes such things as a promissory note received from a buyer (Seller Financing).

    A Rule Of Thumb for avoiding "boot" is to always replace with property of equal or greater value than the Exchange Property. Never "trade down." Trading down always results in boot received either cash, debt reduction or both. Boot received is mitigated by exchange expenses paid. See The Rules Of Boot In A Section 1031 Exchange for a detailed explanation of these rules.

    The Basic Types of Exchanges

    A Simultaneous Exchange is an exchange in which the closing of the Exchange Property and the Replacement Property occur on the same day, usually back - to - back. There is no interval of time between the two closings. This type of exchange is covered by the Safe Harbor Regulations.

    A Delayed Exchange is an exchange where the Replacement Property is closed on at a later date than the closing of the Exchange Property. The exchange is not simultaneous or on the same day. This type of exchange is sometimes referred to as a "Starker Exchange" after the well known Supreme Court case in which ruled in the taxpayer's favor for a delayed exchange before the Internal Revenue Code provided for such exchanges. There are strict time frames established by the Code and Regulations for completion of a delayed exchange, namely the 45-Day Clock and the 180-Day Clock (see detailed explanation below). Delayed exchanges are covered by the Safe Harbor Regulations.

    A Reverse Exchange (Title-Holding Exchange) is an exchange in which the Replacement Property is purchased and closed on before the Exchange Property is sold. Usually the Intermediary takes title to the Replacement Property and holds title until the taxpayer can find a buyer for his Exchange Property and close on the sale under an Exchange Agreement with the Intermediary. Subsequent to the closing of the Exchange Property (or simultaneous with this closing), the Intermediary conveys title to the Replacement Property to the taxpayer. The IRS has issued new safe-harbor guidance on Reverse Exchanges.

    An Improvement Exchange (Title-Holding Exchange) is an exchange in which a taxpayer desires to acquire a property and arrange for construction of improvements on the property before it is received as Replacement Property. The improvements are usually a building on an unimproved lot, but also include enhancements made to an already improved property in order to create adequate value to close on the Exchange with no boot occurring. The Code and Regulations do not permit a taxpayer to construct improvements on a property as part of a 1031 Exchange after he has taken title to property as Replacement Property in an exchange. Therefore, it is necessary for the Intermediary to close on, take title and hold title to the property until the improvements are constructed and then convey title to the improved property to the taxpayer as Replacement Property. Improvement Exchanges are done in the context of both Delayed Exchanges and Reverse Exchanges, depending on the circumstances. The IRS has issued new safe-harbor guidance on Reverse Exchanges (including title-holding exchanges for construction or improvement).

    Delayed Exchanges -
    The Exchange Process and Time Clocks

    A taxpayer desiring to do a 1031 Exchange lists and/or markets his property for sale in the normal manner without regard to the contemplated 1031 Exchange. A buyer is found and a contract to sell the property is executed. Accommodation language is usually placed in the contract securing the cooperation of the buyer to the seller's intended 1031 Exchange, but such accommodation language is not mandatory.

    When contingencies are satisfied and the contract is scheduled for a closing, the services of an Intermediary are arranged. The taxpayer enters into an Exchange Agreement with the Intermediary which permits the Intermediary to become the "substitute seller" in accordance with the requirements of the Code and Regulations.

    The Exchange Agreement usually provides for:

    · An assignment of the seller's Contract to Buy and Sell Real Estate to the Intermediary.

    · A closing where the Intermediary receives the proceeds due the seller at closing.

    · Direct deeding is used. The Exchange Agreement will comply with the requirements of the Code and Regulations wherein the taxpayer can have no rights to the funds being held by the Intermediary until the exchange is completed or the Exchange Agreements terminates. The taxpayer "cannot touch" the funds.

    · An interval of time where the seller proceeds to locate suitable replacement property and enter into a contract to purchase the property. The interval of time is subject to the 45-Day and 180-Day rules.

    · An assignment of the contract to purchase replacement property to the Intermediary.

    · A closing where the Intermediary uses the exchange funds in his possession and direct deeding to acquire the replacement property for the seller.

    The 45-Day Rule for Identification. The first timing restriction for a delayed Section 1031 exchange is for the taxpayer to either close on Replacement Property or to identify the potential Replacement Property within 45 days from the date of transfer of the exchanged property. The 45-Day Rule is satisfied if replacement property is received before 45 days has expired. Otherwise, the identification must be by written document (the identification notice) signed by the taxpayer and hand-delivered, mailed, faxed, or otherwise sent to the Intermediary. The identification notice must contain an unambiguous description of the replacement property. This includes, in the case of real property, the legal description, street address or a distinguishable name.

    After 45 days, limitations are imposed on the number of potential Replacement Properties which can be received as Replacement Properties. More than one potential replacement property can be identified under one of the following three conditions:

    The Three-Property Rule - Any three properties regardless of their market values.

    The 200% Rule - Any number of properties as long as the aggregate fair market value of the replacement properties does not exceed 200% of the aggregate FMV of all of the exchanged properties as of the initial transfer date.

    The 95% Rule - Any number of replacement properties if the fair market value of the properties actually received by the end of the exchange period is at least 95% of the aggregate FMV of all the potential replacement properties identified.

    Although the Regulations only require written notification within 45 days, it is recommended practice for a solid contract to be in place by the end of the 45-day period. Otherwise, a taxpayer may find himself unable to close on any of the properties which are identified under the 45-day letter. After 45 days have expired, it is not possible to close on any other property which was not identified in the 45-day letter. Failure to submit the 45-Day Letter causes the Exchange Agreement to terminate and the Intermediary will disburse all unused funds in his possession to the taxpayer.

    The 180-Day Rule for Receipt of Replacement Property. The replacement property must be received and Exchange completed no later than the earlier of 180 days after the transfer of the exchanged property or the due date (with extensions) of the income tax return for the tax year in which the exchanged property was transferred. The replacement property received must be substantially the same as the property which was identified under the 45-day rule described above. There is no provision for extension of the 180 days for any circumstance or hardship.

    As noted above, the 180-Day Rule is shortened to the due date of a tax return if the tax return is not put on extension. For instance, if an Exchange commences late in the tax year, the 180 days can be later than the April 15 filing date of the return. If the Exchange is not complete by the time for filing the return, the return must be put on extension. Failure to put the return on extension can cause the replacement period for the Exchange to end on the due date of the return. This can be a trap for the unwary.

    Reverse Exchanges -
    The Exchange Process and Time Clocks

    Reverse Exchanges occur when a taxpayer arranges for a Exchange Accommodation Titleholder (EAT) (usually the Intermediary) to take and hold title to Replacement Property before a taxpayer finds a buyer for his Exchange Property. Sometimes the exchange accommodation titleholder will take and hold title to the Exchange Property until a buyer can be found for it. Reverse Exchanges have been common and have been preferred in circumstances where a taxpayer has been compelled to close on Replacement Property before an Exchange Property could be sold and closed or where the taxpayer desired ample time to search for suitable Replacement Property before selling an Exchange Property which started the well-known 45 and 180-day clocks for Delayed Exchanges.

    Reverse Exchanges have also been common where a taxpayer wanted to acquire a property and construct improvements on it before taking title to the property as Replacement Property for an exchange. The Reverse Exchange gave the taxpayer extra time to get the improvements constructed in addition to the 180-day clock referred to above.

    The new safe-harbor procedures impose compliance requirements on Reverse Exchanges that are new and require analysis for impact and planning that can be summarized as follows -

    The 5-Day Rule. A "Qualified Exchange Accommodation Agreement" must be entered into between the taxpayer and the exchange accommodation titleholder (qualified intermediary in most cases) within five business days after title to property is taken by the exchange accommodation titleholder in anticipation of a Reverse Exchange.

    The 45-Day Rule. The property to be "relinquished" (the exchange property) must be identified within 45-days. More than one potential property to be sold can be identified in a manner similar to the rules of delayed exchanges (i.e., the three-property rule, the 200% rule, etc.)

    The 180-Day Rule. The Reverse Exchange must be completed within 180-days of taking title by the exchange accommodation titleholder.

    The 180-Day Clock - As with Delayed Exchanges where the exchange must be completed within 180-days, Reverse Exchanges now must be closed under the new procedures within 180-days. This is a new requirement. In the past, since there has been no statutory limitation of time in which to be in title, it has been common for the Exchange Accommodation Titleholder to be in title on the parked property for a year or more during which the taxpayer would find a buyer for his Exchange Property or during which time the taxpayer would have improvements constructed on the property being held by the Titleholder. 

    180-days may be a suitable time for a buyer to be found for the Exchange Property. But, 180-days is a problem with respect to construction/improvement exchanges. The 180-day time limit within which to complete a safe-harbor Reverse Exchange is probably insufficient for most large "build to suit" exchanges.

    What if the taxpayer has not yet found a buyer for his Exchange Property by the end of 180-days? In this case, the taxpayer can discontinue his attempt to accomplish a Reverse Exchange and take deed to the Replacement Property. Or the taxpayer may decide to extend his Reverse Exchange outside of the protection of the safe-harbor procedures. The safe-harbor guidance issued by the IRS is optional, not mandatory. Reverse Exchanges that do not comply with the requirements of Rev. Proc. 2000-37 stand or fall on their own merits and should be considered risky now that guidelines have been issued for safe-harbor exchanges.

    Rev. Proc. 2000-37 imposes new responsibilities and burdens on the Exchange Accommodator Titleholder. The Accommodator is now required to report for federal income tax purposes the "tax attributes" of ownership of the property it is in title on. It is possible that the Accommodator will be required to depreciate the property just as a true owner would be required to do. Rents and expenses attributed to ownership of the property may have to be reported by the Accommodator. There has been no specific requirement requiring Accommodators to do this prior to Rev. Proc. 2000-37.

    Failure to comply with these new reporting requirements by the Accommodator could invalidate the safe-harbor protection to the client. In addition to these new responsibilities, Accommodators will now have to track the new "time clocks" that apply to Safe Harbor Reverse Exchanges.

    Compliance with these new requirements and responsibilities will impose new administrative burdens and responsibilities on the Accommodator and may contribute to increased fees for this service.

    Reverse Exchanges may very well become the preferred way to manage and transact 1031 Exchanges as a result of this new official blessing by the IRS. The 45-Day identification period of Delayed Exchanges and related pressure to find suitable replacement property are often so burdensome that taxpayers are unable to successfully take advantage of the tax-deferral potential of a delayed 1031 exchange. The risks of Reverse Exchanges have been mitigated into reasonable commercial risks with the new safe-harbor guidelines.

    The Role of the Qualified Intermediary

    The role of the Qualified Intermediary is essential to completing a successful and valid delayed exchange. The Qualified Intermediary is the glue that puts the buyer and seller of property together into the form of a 1031 Exchange. Where such an intermediary (often called an exchange facilitator) is used, the intermediary will not be considered the agent of the taxpayer for constructive receipt purposes notwithstanding the fact that he may be an agent under state law and the taxpayer may gain immediate possession of the money or property under the laws of agency.

    In order to take advantage of the qualified intermediary "safe harbor" there must be a written agreement between the taxpayer and intermediary expressly limiting the taxpayer's rights to receive, pledge, borrow or otherwise obtain the benefits of the money or property held by the intermediary.

    A qualified intermediary is formally defined as a person who is not the taxpayer or a disqualified person who enters into a written agreement (the "exchange agreement") with the taxpayer and, as required by the exchange agreement, acquires the relinquished property from the taxpayer, transfers the relinquished property, acquires the replacement property, and transfers the replacement property to the taxpayer. The qualified intermediary does not actually have to receive and transfer title as long as the legal fiction is maintained.

    The intermediary can act with respect to the property as the agent of any party to the transaction and further, an intermediary is treated as entering into an agreement if the rights of a party to the agreement are assigned to the intermediary and all parties to the agreement are notified in writing of the assignment on or before the date of the relevant transfer of property. This provision allows a taxpayer to enter into an agreement for the transfer of the relinquished property (i.e., a contract of sale on the property) and thereafter to assign his rights in that agreement to the intermediary. Providing all parties to the agreement are notified in writing of the assignment on or before the date of the transfer of the relinquished property, the intermediary is treated as having entered into the agreement and, upon completion of the transfer, as having acquired and transferred the relinquished property.

    There are no licensing requirements for Intermediaries. They need merely be not an unqualified person as defined by the Internal Revenue Code in order to be qualified. The Code prohibits certain "agents" of the taxpayer from being qualified. Accountants, attorneys and realtors who have served taxpayers in their professional capacities within the prior two years are disqualified from serving as a Qualified Intermediary for a taxpayer in an exchange.

    The Rules of "Boot" in a Section 1031 Exchange

    A Taxpayer Must Not Receive "Boot" from an exchange in order for a Section 1031 exchange to be completely tax-free. Any boot received is taxable (to the extent of gain realized on the exchange). This is okay when a seller desires some cash and is willing to pay some taxes. Otherwise, boot should be avoided in order for a 1031 Exchange to be tax free.

    The term "boot" is not used in the Internal Revenue Code or the Regulations, but is commonly used in discussing the tax consequences of a Section 1031 tax-deferred exchange. Boot received is the money or the fair market value of "other property" received by the taxpayer in an exchange. Money includes all cash equivalents plus liabilities of the taxpayer assumed by the other party, or liabilities to which the property exchanged by the taxpayer is subject. "Other property" is property that is non-like-kind, such as personal property received in an exchange of real property, property used for personal purposes, or "non-qualified property." "Other property" also includes such things as a promissory note received from a buyer (Seller Financing).

    Boot can result from a variety of factors. It is important for a taxpayer to understand what can result in boot if taxable income is to be avoided. The most common sources of boot include the following:

    Cash boot taken from the exchange. This will usually be in the form of "net cash received", or the difference between cash received from the sale of the exchange property and cash paid to acquire the replacement property or properties. Net cash received can result when a taxpayer is "trading down" in the exchange so that the replacement property does not cost as much as the exchange property sold for.

    Debt reduction boot which occurs when a taxpayer's debt on replacement property is less than the debt which was on the exchange property. As with cash boot, debt reduction boot can occur when a taxpayer is "trading down" in the exchange.

    Sale proceeds being used to service costs at closing which are not closing expenses. If proceeds of sale are used to service non-transaction costs at closing, the result is the same as if the taxpayer received cash from the exchange, and then used the cash to pay these costs. Taxpayers are encouraged to bring cash to the closing of the sale of their property to pay for the following non-transaction costs:

    Rent prorations.

    Utility escrow charges.

    Tenant damage deposits transferred to the buyer.

    Any other charges unrelated to the closing.

    Excess borrowing to acquire replacement property. Borrowing more money than is necessary to close on replacement property will cause cash being held by an Intermediary to be excessive for the closing. Excess cash held by an Intermediary is distributed to the taxpayer, resulting in cash boot to the taxpayer. Taxpayers must use all cash being held by an Intermediary for replacement property. Additional financing must be no more than what is necessary, in addition to the cash, to close on the property.

    Loan acquisition costs with respect to the replacement property which are serviced from exchange funds being brought to the closing. Loan acquisition costs include origination fees and other fees related to acquiring the loan. Taxpayers usually take the position that loan acquisition costs are being serviced from the proceeds of the loan. However, the IRS may take a position that these costs are being serviced from Exchange Funds. This position is usually the position of the financing institution also. There is no guidance in the form of Treasury Regulations on this issue at the present time which is helpful.

    Non-like-kind property which is received from the exchange, in addition to like-kind property (real estate). Non-like-kind property could include the following:

    ·         Seller financing, promissory note.

    ·         Sprinkler equipment acquired with farm land.

    ·         Ditch stock in a mutual irrigation ditch company acquired with farm land (possible issue).

    ·         Big T Water acquired with farm land (possible issue).

    Acquisition of ditch stock or Big T water is a possible issue with the IRS. Most taxpayers report their exchanges of farm land by taking the position that water on the farm land is indistinguishable from, and the same thing as real estate. The IRS has been known to have a different view.

    Boot Offset Rules - Only the net boot received by a taxpayer is taxed. In determining the amount of net boot received by the taxpayer, certain offsets are allowed and others are not, as follows:

    Cash boot paid (replacement property) always offsets cash boot received (exchange property).

    Debt boot paid (replacement property) always offsets debt-reduction boot received (exchange property).

    Cash boot paid always offsets debt -reduction boot received.

    Debt boot paid never offsets cash boot received (net cash boot received is always taxable).

    Exchange expenses (transaction and closing costs) paid (exchange property and replacement property closings) always offset net cash boot received.

    Rules of Thumb:

    · Always trade "across" or up. Never trade down. Trading down always results in boot received either cash, debt reduction or both. The boot received can be mitigated by exchange expenses paid. · Bring cash to the closing of the Exchange Property to cover charges which are not transaction costs (see above). · Do not receive property which is not like-kind. · Do not over-finance replacement property. Financing should be limited to the amount of money necessary to close on the replacement property in addition to exchange funds which will be brought to the replacement property closing.

    Seller Carry backs and Dispositions A Seller Financed Sale is usually incompatible with a desire to do a Section 1031 Exchange of real estate. The reason is that a promissory note is property received which does not meet the requirement that real estate be exchanged solely for other like-kind property (real estate). If seller financing is necessary due to circumstances, and if a delayed exchange with the use of an Intermediary is employed, it is possible to salvage Section 1031 Exchange treatment by one of the following procedures:

    The Intermediary can take and hold the promissory note as part of the exchange proceeds and hold the note until a disposition occurs. At the closing of the Replacement Property, the Intermediary conveys ownership of the note to the taxpayer and the taxpayer brings a like amount of money to the closing table in exchange for the note. This is equivalent to "buying" the note from the Intermediary. Otherwise, it is a distribution of "boot" to the taxpayer by the Intermediary which is offset by "boot" paid by the taxpayer at the Replacement Property closing table. Under the Rules of Boot, cash boot paid by a taxpayer offsets cash boot received, and hence, under the boot netting rules, there is no net boot received by the taxpayer.

    The seller could loan the buyer money prior to the real estate closing and then take a deed of trust on the property at closing. The Intermediary could sell the promissory note to a financial institution or investor and use cash received to acquire qualifying replacement real estate for the seller under the Exchange Agreement. The Intermediary could use the promissory note in his possession as consideration for the acquisition of replacement property. A problem with this is that in the hands of the seller of the replacement property, the note is a third-party note not eligible for installment sale reporting under IRC §453. Accordingly, there is disincentive for the seller to take the note as part of the consideration to be received from the sale of his property. This problem is compounded if the seller is also trying to do a 1031 Exchange of his property.

    These dispositions are not covered by the 1991 Regulations and are not protected by the safe-harbor provisions. Therefore, potential tax issues are always possible under an examination by the IRS.

    Related Party Exchanges (Two-Year Holding Period Requirement)

    There is a special rule for exchanges between related parties (§1031(f)), which provides that related taxpayers who directly or indirectly exchange property must hold the exchanged property for at least two years after the exchange for the exchange to qualify for non-recognition treatment. If either party disposes of the property received in the exchange before the running of the two-year period, any gain or loss that would have been recognized on the original exchange must be taken into account on the date that the disqualifying disposition occurs.

    Often, a taxpayer will sell to a related party but receive Replacement Property from an unrelated party. Tax and Exchange Professionals do not perceive this type of transaction to be a "related party exchange."

    Also, a taxpayer will often desire to sell to an unrelated party and receive Replacement Property from a related party. This type of related party transaction does not work according to the IRS if the related party receives cash (PLR 9748006 and Rev. Rule. 2002-83).  The IRS reasons that if the taxpayer or a related party "cashes out" of property in this manner, IRC §1031(f)(4) "kicks-in" and the exchange is disallowed. 

    However, if the related party is also doing an exchange (and is not "cashing out") then it is okay to receive Replacement Property from a related party according to PLR 2004-40002.  This is technically not a "related party exchange" under IRC §1031(f) because it is not a reciprocal deed-swap, and therefore, the two-year ownership requirement should not apply.  However, some commentators believe that it might.  This is unclear.  
    Related parties under the rules are the following -

    · Members of a family, including only brothers, sisters, half-brothers, half-sisters, spouse, ancestors (parents, grandparents, etc.), and lineal descendants (children, grandchildren, etc.);

    · An individual and a corporation when the individual owns, directly or indirectly, more than 50% in value of the outstanding stock of the corporation; · Two corporations that are members of the same controlled group as defined in §1563(a), except that "more than 50%" is substituted for "at least 80%" in that definition;

    · A trust fiduciary and a corporation when the trust or the grantor of the trust owns, directly or indirectly, more than 50% in value of the outstanding stock of the corporation;

    · A grantor and fiduciary, and the fiduciary and beneficiary, of any trust; · Fiduciaries of two different trusts, and the fiduciary and beneficiary of two different trusts, if the same person is the grantor of both trusts; · A tax-exempt educational or charitable organization and a person who, directly or indirectly, controls such an organization, or a member of that person's family; · A corporation and a partnership if the same persons own more than 50% in value of the outstanding stock of the corporation and more than 50% of the capital interest, or profits interest, in the partnership; · Two S corporations if the same persons own more than 50% in value of the outstanding stock of each corporation; · Two corporations, one of which is an S corporation, if the same persons own more than 50% in value of the outstanding stock of each corporation; or · An executor of an estate and a beneficiary of such estate, except in the case of a sale or exchange in satisfaction of a pecuniary bequest. · Two partnerships if the same persons own directly, or indirectly, more than 50% of the capital interests or profits in both partnerships, or

    · A person and a partnership when the person owns, directly or indirectly, more than 50% of the capital interest or profits interest in the partnership.

    A disqualifying disposition does not include dispositions by reason of the death of either party, the compulsory or involuntary conversion of the exchanged property if the exchange occurred before the threat or imminence of the conversion, or dispositions where it is established to the satisfaction of the IRS that neither the exchange nor the disposition had as one of their principal purposes the avoidance of federal income tax.

     Multiple-Asset Exchanges and Personal Residences

    A Multiple-Asset Exchange occurs when a taxpayer is selling/exchanging a property which includes more than one type of asset. A Common example is a farm property including a personal residence, farm land and farm equipment.

    The Treasury Department has issued Regulations which govern how multiple-asset exchanges are to be reported. The Regulations establish "exchange groups" which are separately analyzed for compliance with the like-kind replacement requirements and rules of boot. Farm land must be replaced with qualifying like-kind real property. Farm equipment must be replaced with qualifying like-kind equipment. A personal residence is not 1031 property and is accounted for under the rules applicable to the sale of a personal residence.

    The Multiple-Asset Regulations are ambiguous concerning how the personal residence portion of a multiple-asset exchange should be accounted for. However, it is common practice for the closing on the Exchange Property to be bifurcated into two separate closings; one for the personal residence and the other for the remainder of the property. The proceeds applicable to the sale of the personal residence are usually disbursed to the taxpayer and not retained by the Intermediary in the exchange escrow. The balance of the proceeds is disbursed to the Intermediary for use in acquiring like-kind replacement property under the Exchange Agreement.

    Another common example of multiple-asset exchanges is a real property sale that includes personal property (i.e. furniture and appliances). Rental properties including this type of personal property are multiple-asset exchanges. Hotel properties are a good example of a multiple-asset exchange including real and personal property.

    Even a sale/exchange of a rental property includes a combination of real and personal property. In practice, the value of the personal property that is transferred with a rental property is commonly disregarded for calculation and income tax reporting purposes. However, there is no de minimis rule which permits a taxpayer to disregard the value of personal property, even if it is nominal.

    The Multiple-Asset Regulations are complex and require the services of a tax professional for analysis purposes and income tax reporting. The tax professional is essential and will help in determining values, allocations of sale price and purchase prices to the elements of the transaction. Exchanges that include personal property of significant value should reference the personal property in the exchange agreement and be completed in a manner that complies with all of the exchange rules concerning identification, etc.

    Partnership and Co-Ownership Issues

    Investment real estate is commonly owned by co-owners in a partnership containing two or more partners or by co-owners as tenants in common. An exchange of a tenant in common interest in real estate poses no problems and is eligible for 1031 Exchange treatment. However, an exchange of an interest in a partnership is not permitted under the Code and Regulations.

    If a partnership owns property and desires to sale/exchange the property, then the partnership is the entity that is the Exchanger and party to the Exchange Agreement. The partnership will take title to the Replacement Property.

    Frequently, individual partners in a partnership desire to take their share of the proceeds of sale of the partnership property replace with qualifying 1031 replacement property in their own names and end their relationship with the partnership. This presents problems that require careful planning and is not without tax risk.

    If a two-partner partnership wishes to discontinue the partnership, sell the property and go their separate ways with either the cash or a 1031 Exchange, it is necessary for the individual partners to receive deed to the property from the partnership in advance of the sale of the property. This is done in the context of a distribution of property from the partnership to its partners. The individual partners are then generally required to hold the property as tenants in common for an unspecified period of time (decent interval of time) in order to comply with the "holding" requirement of 1031 Exchanges that requires a taxpayer to have "held" qualifying property for business or investment purposes prior to the exchange.

    If a partnership with multiple partners wishes to exchange property but some of the partners want to "cash-out" or go separate ways, it is common for the partnership to do a "split-off." The partnership distributes tenancy in common title to a portion of the partnership property to those individual partners who wish to proceed in separate directions, and the partnership (and its remaining partners) proceed with an exchange in the name of the partnership.

    The services of a tax professional and/or attorney is essential for tax planning and structuring for successful exchanges of partnership and co-ownership interests in real estate.  Please contact me if you would like to schedule a meeting to discuss investments in real estate.