There is no argument that the IRS is quite strict when it comes to applying the rules governing 1031 exchanges. Every year, hundreds of proposed exchanges fail because the investor fails to meet one of the requirements set forth in the code.
One of the biggest areas where mistakes are made? Identifying the replacement property.
To make sure you don’t make a misstep here and jeopardize your next exchange, we offer our top tips for identification. When you understand all the requirements of identifying replacement property, you are far less likely to jeopardize your planned exchange.
3 Property Rule – There are different rules that set forth how many possible replacement properties may be identified by an investor, but most follow this rule. It allows an investor to identify up to three replacement properties and eventually acquire, one, two or all three of them.
200% Rule – An investor can identify more than three possible replacement properties so long as the total fair market value of all those properties identified does not exceed 200% of the fair market value of the relinquished property.
95% Rule – Not commonly used, this allows investors to identify more than three replacement properties with a total value greater than 200% of the FMV of the relinquished property, so long as the investor acquires at least 95% of the value of the identified properties.
Manner Of Identification – This must be in writing and signed by the investor, and the property must be unambiguously described. This generally means identified by address or legal description. If the property is one where the investor is acquiring less than 100% interest, the percentage share of the acquisition must be identified, too.
Provide Information To The Right Person – The investor must provide the requisite identification information to either (a) the person obligated to transfer the replacement property to the investor, or (b) any other person “involved” in the exchange, such as the qualified intermediary, escrow agent or title company. However, the person receiving the information cannot be a disqualified person like the investor’s real estate agent or a family member. Generally, the qualified intermediary is the recipient of choice in an exchange.
Replacement Property Must Be The Same As What Was Identified – The investor must receive “substantially the same” property as he or she identified. While what the IRS considers “substantially the same” is a bit ambiguous, generally they draw the line at property that differs in basic nature or character.