Like-Kind Exchange

What is 'Like-Kind Exchange'

A like-kind exchange is a tax-deferred transaction that allows for the disposal of an asset and the acquisition of another similar asset without generating a capital gains tax liability from the sale of the first asset. Until passage of the new tax legislation in December 2017, this could include the exchange of one business for another – or one piece of tangible property, such as artwork or heavy equipment, for another. After 2017, a like-kind exchange applies only to the exchange of a business or real estate investment property for another property.

A like-kind exchange is also known as a 1031 exchange or a Starker exchange.

BREAKING DOWN 'Like-Kind Exchange'

When a commercial property or investment property is sold for a gain, the investor is required to pay a capital gains tax on the profit earned. All capital gains are taxed at either the short-term capital gains rate between 10% to 37% for profits made on a sale within one year, or the long-term rate which falls between 10% to 20% for profits made on a sale after one year of the initial purchase date. However, Section 1031 of the Internal Revenue Code (IRC) exempts an investor from making a tax payment on a gain if the proceeds from the sale or disposal of the property is reinvested in a similar property of equal or greater value as part of a qualifying like-kind exchange. Any real estate, except for one’s own personal residence, is considered like-kind to any other real estate. Generally, any real estate property held for the productive use in the trade or business or for investment qualifies for a like-kind exchange.

A taxpayer that sells a piece of investment property and buys another within a stipulated time limit will not have to pay tax on the first disposal. S/he will have to pay tax upon sale or disposal of the second property unless another like-kind exchange is done, in which case, the tax payment will be deferred again.

There are several important considerations to keep in mind with a like-kind exchange to ensure that a tax liability is not created upon sale of the first asset:

  1. The asset being sold must be an investment property and cannot be a personal residence.
  2. The asset being purchased with the proceeds must be similar to the asset being sold.
  3. The proceeds from the sale must be used to purchase the other asset within 180 days of the sale of the first asset, although you must identify the property or asset that you are purchasing in the like-kind exchange within 45 days of the sale.

There are some limitations on the amount of capital gain that is tax deferred, so ensure that you check the latest tax rules before proceeding with a like-kind exchange.

In addition to the tax deferral benefits, a like-kind exchange allows the seller to defer his or her depreciation recapture – the gain received from the sale of depreciable capital property that must be reported as income for income tax purposes. A taxpayer can also avoid state taxes on like-kind exchanges. For example, some states require that either a buyer or seller pay state income taxes when a property is sold, known as state mandatory withholding. Property transferred in a like-kind exchange, however, can receive an exemption. To claim the exemption, the taxpayer will need to sign an exemption form or certificate provided by the state. Some states require the seller to submit the exemption 20 days before closing, while other states may allow the exemption form to be submitted at closing.

A like-kind exchange is ideal for a business owner looking to sell his business and invest in another one or a real estate investor looking to sell a rental property and buy a similar one. An 8824 Form must be filed with the Internal Revenue Service (IRS) detailing the terms of the deal. Gain recognized because boot – cash, liabilities or other property that is not like-kind and that is given or received in a like-kind exchange – was received is reported on Form 8949, Schedule D (Form 1040), or Form 4797, as applicable. If depreciation must be recaptured, then this recognized gain may have to be reported as ordinary income.