EP 20 | HOW TO DEFER TAXES LIKE THE WEALTHY

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Hosted by
ANDREW LANOIE

On this episode of “The Impatient Investor”, Andrew talks about how millionaires utilize real estate investment and favorable tax laws to minimize liabilities, increase their investment base, and compound their wealth.

“Not only do the ultra-rich know how to build empires through real estate, but they also use all the tricks and strategies at their disposal to pad their wealth.”

FULL TRANSCRIPTION:

The mega wealthy of the world, particularly the self-made millionaires and billionaires, have made their fortunes in many ways, but there is a common thread among many of them. They have made commercial real estate a central part of their investment strategy. Of all the ways the self-made ultra-rich have made their fortunes, real estate outpaced every other method, three to one. Not only do the ultra-rich know how to build empires through real estate, but they also use all the tricks and strategies at their disposal to pad their wealth, including taking advantage of the tax codes and favorable tax laws to minimize their tax liabilities.

Fewer taxes means a bigger investment base for compounding wealth and one of the wealthiest favorite tools for deferring taxes, the 1031 exchange. The 1031 exchange rooted in section 1031 of the internal revenue code allows investors, both individuals and entities, to defer capital gain taxes from the sale of one investment property or asset, and using those proceeds to acquire another property or asset of equal or greater value. This exchange must occur within a specific period of time. Besides timing, the two most important criteria for qualifying for 1031 exchange tax deferral are the properties included in the transaction must be like kind and the exchange properties must be held for productive purposes and business or trade as an investment.

Although qualifying business assets used in a productive business, such as large farm or manufacturing equipment can qualify for a 1031 exchange treatment. The vast majority of transactions involve commercial real estate. A common misconception about 1031 like kind exchanges is that investors can only exchange one property for another similar type of property. For example, a multifamily property can only be exchanged for another multifamily property. Fortunately, the tax code does not specifically define a like kind property and does not limit like kind property to certain types of real estate. The main criteria for establishing like kind property is that both properties in the exchange must be held for productive use in a trade or business. By that definition, the IRS has been pretty liberal in determining what qualifies as a light kind property, more interested in the nature or character of the property rather than its greater quality.

Typically exchanging one productive commercial real estate asset for another producing commercial real estate asset would qualify for a 1031 exchange treatment. Exchanging a commercial asset for a primary residence would not qualify under this criteria since the primary residence would not be considered a productive business asset. Likewise, exchanging a commercial asset for an interest or partnership interest in a real estate investment fund would also not qualify for a 1031 exchange treatment. The following non comprehensive list of assets are examples of like kind property: unimproved property, improved property, vacant land, net lease property, commercial buildings, rental properties, farms, or ranches,resorts, industrial property, retail property, office buildings, self-storage, senior living centers, hotels or motels, restaurants, daycare facilities, tire and automotive stores and tenant in common properties or TIC properties.

The following would qualify for 1031 exchange treatment, raw land for farm land,oil and gas interest for a ranch, fee simple interest in real estate for a tenancy in common interest, commercial, industrial, or retail rental properties for any other commercial real estate and rental beach condos for a multifamily building. Besides the like kind requirement, timing is also crucial in qualifying for a 1031 treatment.

From a timing perspective, there are two types of exchanges, simultaneous and deferred. A simultaneous exchange involves two parties, swapping properties with each other, or the exchange closing on both the sale of the relinquished property and the acquisition of the replacement property on the same day. By far the most common form of exchange, a deferred exchange is an exchange in which the investor has 180 days to finalize the exchange after it takes place. For example, if an investor sells an apartment building, they have 45 days to identify a replacement property and the purchase of a like kind property must be completed within 180 days of the sale of the apartment building. Side note, earlier this year in April, the treasury department issued notice 2020-23, which addressed the threat posed by the COVID-19 crisis to 1031 exchange tiny issues by extending the 45 day and 180 day deadlines beyond their scheduled deadlines to July 15th, 2020, also in a deferred exchange, the investor must use a qualified intermediary. A qualified intermediary is an agent who facilitates the 1031 exchange process by holding net proceeds from the relinquished property before they are reinvested in the replacement property. The 1031 exchange is a big deal and a valuable tool used by the wealthy to defer taxes in perpetuity, especially on property owned through an entity that makes transferring interest upon death or other life events more convenience.

Although property owned by an individual cannot be exchanged for a partnership interest in a real estate investment fund, nothing stops that fund from taking advantage of 1031 exchanges at the entity level and deferring taxes at the entity level for the benefit of its investors indefinitely. The mega wealthy love commercial real estate, and they love any favorable laws that reduce their tax liabilities and put more money in their pockets for building wealth. And one of their favorite strategies is the 1031 exchange, which they take advantage of often through both direct investments and indirect investments in private real estate funds that take advantage of 1031 exchanges to defer tax liabilities for the benefit of their investors.

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