Usually, when an individual sells an investment property and enjoys a gain on the sale, that gain is taxed. However, it may be possible to postpone having to pay that tax under certain conditions. This is because of a special provision of the Internal Revenue Code (IRC) related to “like-kind” exchanges of property.
Under IRC §1031, an exception to the tax on the sale of an investment property is made for transactions that involve a like-kind exchange. This type of transaction occurs when the property being sold and the property being acquired meet certain requirements. First, both properties must be held for investment purposes. This means that property held for personal use does not qualify as a like-kind exchange.
The second requirement is that the sold property and the acquired property must be sufficiently similar to each other. Property that is like-kind must have the same nature, character, or class. Generally speaking, real estate is like-kind to other real estate. But, property within the United States is not like-kind to property outside of the United States. Both real and personal property can be like-kind, but they are not like-kind to each other.
Some types of property specifically excluded from §1031 include, but are not limited to:
1. Property held primarily for sale;
2. Stocks, bonds or notes;
3. Partnership interests; and
4. Certificates of trust.
§1031 allows an individual to delay the payment of tax on a gain from the sale of property so long as the proceeds are reinvested in similar property. It is important to note that this allows for the payment of tax to be deferred. It does not mean that the individual will never have to pay tax on the gain.
Reporting to the IRS
When an individual completes a like-kind exchange, it must be reported to the Internal Revenue Service (IRS). To do this, the individual must fill out Form 8824 and file it along with his or her tax return for the year in which the exchange occurred. Form 8824 requires the individual to provide the following information:
1. A description of the properties involved;
2. Date the properties were exchanged;
3. Whether a relationship exists between the parties involved in the exchange;
4. Value of both properties;Gain or loss on non-like-kind property involved;
5. Cash accepted or paid;
6. liabilities relieved or taken on; and
7. The adjusted basis of the property relinquished and any realized gain. It is important to follow the reporting requirements, as failing to do so can lead to the assessment of tax, penalties, or interest on the transaction.
Help with Real Estate Issues
Often, the sale of investment property leads to a significant tax event. By utilizing this special provision of the tax code, you can delay having to pay that tax. For more information related to the tax implications of buying and selling investment property, contact a skilled Illinois real estate attorney today. Our firm provides help to individuals in the communities of Inverness, Palatine, Schaumburg, Arlington Heights, Long Grove, Kenilworth, Riverwoods, Barrington, South Barrington, and Mount Prospect.
About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.