The Exchange

Volume 6
The Exchange
By Anna Gregory Wagoner, Exchange Counsel & Carol Hayden, Executive Vice President
Taxpayers considering structuring a 1031 exchange sometimes
want to know if they can provide seller financing to the buyer of
their relinquished property, usually because the buyer is unable to
obtain financing from a traditional lender. Such seller financing
is very tricky to structure within a 1031 exchange and there is
limited guidance from the IRS on how taxpayers can combine
Section 1031 with installment sale rules. To qualify as a like-kind
exchange, the taxpayer must receive like-kind property; gain may
be recognized to the extent “boot” is received in the transaction.
One problem with seller financing is that a note received from
a buyer is not like-kind to real property and will be treated as
cash boot in the transaction. Because of this issue, it is usually
recommended that a seller avoid taking a note from the buyer.
Sometimes, however, this cannot be avoided. Various methods
that have been used by taxpayers to accomplish different tax goals
are discussed below.
1. General Rule for Recognition of Gain in an Installment Sale
For starters, it’s important to remember the general tax treatment
of the receipt of a note when a seller engages in seller financing.
Under installment sale rules set forth in Internal Revenue Code §
453, the gain is generally prorated over the life of the note. (Certain
rules and exceptions for some transactions apply.) The proration
will occur by applying a Gross Profit Percentage to each principal
payment received. The Gross Profit Percentage = Gross Profit ÷
Contract Price. For instance, if a taxpayer is selling property for a
total contract price of $500K, that has an adjusted basis of $100K,
he has a Gross Profit of $400K. The $400K gross profit, divided
by the $500K contract price, creates a Gross Profit Percentage of
80%. ($400K/$500K = 80%.) Let’s say the taxpayer has agreed to
seller financing, requiring $50K down at closing, and an additional
$50K payment each year for the next 9 years, plus interest. The
seller will recognize gain in the amount of $40K each year for 10
years, calculated by applying the gross profit percentage of 80% to
each $50K principal payment received, in the year it is received.
If, however, in the fifth year after closing the purchaser refinances
and pays off the entire remaining principal balance of $250K, the
taxpayer will recognize $200K capital gain that year, i.e., 80% of
the principal amount received that year. An installment sale, like a
§1031 exchange, is a method of deferring recognition of gain rather
than recognizing all the gain at the time of the sale.
2. Combination 1031 Exchange and Installment Sale
Internal Revenue Code Section 453(f)(6) deals with installment
sales that also include a like-kind exchange component.
Combining a 1031 exchange with an installment sale will not
result in the same gross profit percentage discussed above. As an
example, let’s assume a taxpayer wants to seller-finance $300K
of the same $500K sale, which has a $100K basis. He intends
to acquire replacement property worth $200K (the amount of the
sales proceeds to go to the Qualified Intermediary at closing),
and intends to defer gain on the remaining $300K note, to be
recognized over the life of the note. Under the rules for combining
a 1031 exchange with an installment sale, the like-kind property is
not considered an installment payment received¹, rather the note
is considered boot in the 1031 exchange. The gain deferred in the
exchange, therefore, is $400K (realized gain), minus $300K (boot
from the note) = $100K. To calculate the gross profit percentage
to be applied to payments received under the note, the contract
price is reduced by the amount of like-kind property received². So,
the contract price used in calculating the gross profit percentage
is $500K, minus $200K replacement property = $300K. The
gross profit for the note is calculated by reducing the gain not
recognized because of the 1031 exchange³, i.e. $400K (gross profit)
- $100K (gain deferred in exchange) = $300K. So the gross profit
percentage (gross profit/contract price) is $300K/$300K, or 100%.
All of the principal payments received under the note will be taxed
as gain, and only $100K can be deferred under Section 1031. The
net effect to remember is that as a result of the combination of a
1031 exchange with seller financing, the note is considered boot,
and gain goes first to the note. Only any remaining gain may be
deferred under Section 1031. If a taxpayer did not seek guidance as
to the nuances of combining a 1031 exchange with an installment
sale, he might believe he could apply the normal 80% gross profit
percentage and defer $160K gain in the exchange and $240K gain
under the note. He would be wrong! In fact, this combination of an
exchange and seller financing only benefits the taxpayer if the gain
realized in the transaction is greater than the amount of the note.
I.R.C. § 453(f)(6)(C)
I.R.C. § 453(f)(6)(A)
I.R.C. § 453(f)(6)(B)
continued on page 2
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So, are there any methods of structuring combined seller financing and a 1031 exchange to avoid
characterization and treatment of the note as “boot”? Section 453(d) permits a taxpayer to opt out of
installment sale treatment. The remaining methods of dealing with seller financing assume that the taxpayer
has opted out of installment sale treatment, and must find a way to avoid receipt of the note as boot in the
transaction. The note must be converted to cash in the qualified intermediary’s hands to be used to purchase
replacement property.
3. Cash Loan from Taxpayer to Buyer
If the taxpayer has cash available, some authorities suggest he could use that cash to make a separate loan
to the buyer, which is, in essence, a loan like any other third-party loan4. This loan will, presumably, not
result in taxable boot to the taxpayer because the loan funds are coming out of his own pocket, not out of
the relinquished property equity. This will allow all of the equity from the relinquished property to go to the
qualified intermediary, to be used toward the purchase of replacement property. It may also be preferable
for someone related to the taxpayer, such as a non-title-holding spouse, sibling, parent, or controlled entity
to act as the lender in this situation. In this scenario, the taxpayer’s receipt of the note, theoretically, would
not be boot, because it is not true seller financing – the QI has received cash from the purchaser, generated
by a true cash loan. Although various experts have suggested this method, there have been no IRS rulings
allowing or disallowing this structure.
4. Note Made Payable to the Qualified Intermediary Who Sells the Note to the Taxpayer
As discussed above, if the note is made payable to the taxpayer, it will be taxable boot to him. One way to
avoid this boot characterization would be to have the note from the buyer made payable not to the taxpayer,
but to the qualified intermediary. Any payments due on the note during the exchange period should be
made to the qualified intermediary, not the taxpayer, and these payments can be used toward the purchase
of replacement property. This method is especially useful if the buyer just needs seller financing for a short
period of time, as a bridge loan. If the buyer pays off the loan before the acquisition of replacement property,
it has been converted to cash in the qualified intermediary’s hands, for the purchase of the replacement
property. However, if it is long-term financing, prior to or at the closing of the replacement property, the taxpayer typically buys the
note from the qualified intermediary at face value and the cash paid by the taxpayer will be used to purchase replacement property.
This results in all of the equity from the relinquished property being transferred to the replacement property. Although this method also
requires the taxpayer to put money into the transaction, he has the advantage of a little more time to come up with the cash.
5. Note Made Payable to the Qualified Intermediary Who Sells the Note to a Third Party
Just as in the preceding option, the buyer will make the note payable to the qualified intermediary and any payments due on the note
during the exchange period should be made to the qualified intermediary, not to the taxpayer. Again, this prevents constructive receipt
of the note by the taxpayer, which would be boot in the exchange. In this case, instead of the taxpayer buying the note for cash, a
third party will buy the note for cash, usually for less than face value. The cash generated from the sale will then be used to purchase
replacement property. This option presents two problems; however: 1) how does the taxpayer report the qualified intermediary’s sale of
the note at a discounted price on Form 8824 when he reports his exchange on his tax return; and 2) is the qualified intermediary required
to report the sale of the note on its tax return?
6. Note Made Payable to the Qualified Intermediary Who Uses the Note to Buy Replacement Property
Once again, the note should be made payable to the qualified intermediary with any payments due going to the intermediary, not
the taxpayer. This option may be useful if the taxpayer does not have the cash available to purchase the note from the qualified
intermediary. At the replacement property closing, the qualified intermediary can simply assign the note to the seller as partial payment
for the replacement property. While this option sounds like a good idea, it is usually tough to accomplish in reality because most sellers
aren’t willing to accept a note in lieu of cash as payment for their property.
All of the options discussed above show just how difficult it can be to attempt seller financing in a 1031 exchange. It is preferable for
the taxpayer to require that the buyer obtain conventional financing from a third-party lender. If that is not possible, it may still be better
for the taxpayer to find another buyer who will not require seller financing. However, in today’s difficult real estate lending market,
exchangors may increasingly turn to creative methods, such as seller-financing, as borrowers look to alternative ways to finance their
purchases. Although Investors Title has seen these methods used by taxpayers, we neither endorse, encourage, nor discourage their
utilization. It is important to note that the IRS has offered so little guidance in this arena, that it is absolutely critical for the taxpayer to
consult with his tax advisor on such a complex issue.
IRS Circular 230 Disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice
contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of
(i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction
or matter addressed herein.
Tax-Free Exch Under § 1031 § 9:21, Long & Foster (West.)
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