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The
Reverse Exchange -- A Useful Tool
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In
a market this hot, if
you want to do a 1031 exchange you have quite a
dilemma. You would like to exchange your highly
appreciated Old Property, but finding replacement
property in time is difficult. In a straight 1031
exchange, you have 45 days from the date of sale
to identify potential replacement property
and 180 days to close the purchase. There are no
extensions to these time frames! Property not identified
or purchased in time will toast your exchange, and
you'll pay tax on the sale of your Old Property.
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by
Nace Cohen
Manager at
The 1031 Exchange Experts |
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We're
currently in a market where inventory is in short
supply, and if you don't act fast, properties are
gone. If you're hesitant to sell your Old Property
first for fear of not being able to find the perfect
New Property in time, consider doing a "Reverse
Exchange."
A Reverse Exchange arises when you want (or need)
to buy your New Property before you've sold your
Old. The problem is that the IRS will not let you
be in title to both your Old Property and the New
Property at the same time. To resolve this, the
IRS issued a ruling (Rev. Procedure 2000-37) which,
in simple terms, requires that your Qualified Intermediary
(QI) take title to the New Property for you and
hold, or "park" it until you get your Old Property
sold. Once your Old Property closes, the QI transfers
title to you and the exchange is completed.
Armed with this new tool, you're ready to surge
forward, right? Not too fast, there are two hurdles
to get through.
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appeared in... |
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August,
2004 |
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The first is financing. When the QI takes title to the
New Property, they usually do so using a Limited Liability
Company (an LLC).
The
lender's loan, then, is to the LLC, secured by your
New Property, and guaranteed by you. This makes the
loan un-salable until you are finally in title to the
New Property.
If
you are working with a lender, ask them if they plan
to sell your loan. If the answer is yes, they will not
be able to finance your reverse exchange. You need a
lender who will hold, or what they term "portfolio,"
the loan. Typically this will be a bank rather than
a mortgage broker.
Your
QI should be experienced enough to direct you to a good
portfolio lender. Our experience is that portfolio lenders
will not gouge you; their fees and rates are reasonable
-- but you won't be able to negotiate a deal like you
usually can with a mortgage company. Another benefit
of dealing with a portfolio lender is that it is not
uncommon for our clients to finance most, if not all,
of the purchase of the New Property. If both properties
are located in the same state, the lender will often
take a security interest in both of them. Adding the
value of both, and subtracting the debt, often yields
enough room for a 100% loan for the purchase of the
New Property.
Make sure the loan does not have a "due on sale" clause.
If it does, you need to have the lender modify it so
the loan is not called when ownership is transferred
from the QI to you. Also, if you plan on leaving the
loan in place after you take title from the QI, make
sure there is a "re-amortization" clause. This will
allow you to modify the payment when the loan is paid
down after the sale of the Old Property.
The second hurdle in a Reverse Exchange is the fee to
the QI. The QI has to set up an LLC to take title to
the New Property and dissolve it when the exchange is
completed.
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also need to keep a set of "books" for it and file tax
returns.
In
addition, there should be a whole set of legal documents
over and above the straight or forward exchange that
need to be prepared. Don't forget: they own the property
-- not you! Therefore, an experienced QI should give
you the comfort level you need to make sure the New
Property is safe while in their control, and when they
eventually transfer title to you.
Fees
to the QI to do a reverse will not seem that bad if
your transaction is large, say $500,000 or more. The
smaller your transaction, the more prohibitive the cost
will seem. Bear in mind it's the savings on the capital
gains tax you're after, so get with your CPA to figure
that out prior to committing to a reverse exchange.
Utilizing the reverse exchange has many benefits. In
a market where property is moving as fast as it is in
Florida, it's a great way to secure the New Property.
In addition, buying the New Property first locks in
the price now as opposed to taking the chance the cost
will rise. This strategy also enables you to not "fire
sale" the Old Property, and you can take more time selling
your Old Property and get the right price. This may
help offset some of the extra cost to the QI.
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| Nace
Cohen, Florida CPA,
is the Manager of The 1031 Exchange
Expert's Florida offices and is based in Naples.
He lectures extensively on IRC Ñ1031, consults
and structures 1031 exchanges for Realtors
and their clients. He is an affiliate member
of NABOR and was selected to participate in
NABOR°s first Leadership Development Program
currently in process. |
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