Contributor James Miller, Assistant General Counsel, IPX1031®
Over the past two years there have been numerous proposals to restrict or eliminate I.R.C. §1031 tax deferred exchanges. These proposals are based on misunderstandings about §1031 and do not account for the powerful stimulus impact that §1031 exchanges have on the US economy. This article will debunk a few of those myths and discuss the findings of a couple of recently released studies that quantify just how important §1031 exchanges are to a healthy US economy.
Myth: Section 1031 allows taxpayers to avoid capital gains taxes, and to defer gain indefinitely.
Truth: Under §1031, taxes are deferred—not eliminated. Section 1031 exchanges structured under the IRS regulatory safe harbors are neither tax savings vehicles nor “abusive tax avoidance schemes.” Payment of tax occurs: 1) upon sale of the replacement asset and 2) incrementally, through increased income tax due to reduced depreciation deductions. A recently conducted study entitled “The Economic Impact of Repealing or Limiting Section 1031 Like-Kind Exchanges in Real Estate” conducted by Professors David Ling and Milena Petrova (“Ling & Petrova Study”) examined more than 1.6 million commercial real estate transactions between 1997 and 2014. It found that nearly eighty-eight percent of properties acquired in a 1031 exchange were ultimately sold in a taxable sale, rather than a subsequent exchange.
Myth: The absence of a precise definition of “like-kind” is administratively difficult for the IRS and creates the opportunity for abuse.
Truth: The definition of “like-kind” is well understood, §1031 is neither administratively difficult nor abusive. Like-kind exchanges facilitated by professional Qualified Intermediaries, and conducted within the regulatory safe harbors, are straight-forward transactions that follow a well-understood set of rules (including definitions), procedures and documents.
Myth: Like-kind exchanges are used only by the wealthy.
Truth: Like-kind exchanges are used by a broad spectrum of taxpayers at all levels. Section 1031 is fair, benefitting taxpayers of all sizes, in all lines of business, including individuals, partnerships, limited liability companies, and corporations. A 2011 industry survey concluded that sixty percent of exchanges involved properties worth less than one million dollars, and more than a third were worth less than five-hundred thousand dollars. Exchanged properties include real estate, construction and agricultural equipment, railcars, vehicles, ships and other investment and business-use assets.
Myth: Elimination of §1031 like-kind exchanges will raise significant revenue.
Truth: Elimination of §1031 would result in a long-term reduction in Gross Domestic Product (“GDP”) of the US. Section 1031 is a powerful economic stimulator, encouraging investment in small and medium sized growing businesses, thereby promoting US job growth. Section 1031 exchanges contribute to the velocity of the economy by stimulating a broad spectrum of transactions ancillary to the actual exchange which, in turn, generate jobs and taxable income through business profits, wages, commissions, insurance premiums, financial services, and discretionary spending by gainfully employed workers. This transactional activity raises state, local and federal tax revenue through transfer, sales and use taxes and increased property taxes.
Ernst & Young recently released a macro-economic study, Economic Impact of Repealing Like-Kind Exchange Rules, that found that the U.S. economy would contract by approximately $61 – $131 billion over ten years if §1031 was eliminated.
Other key findings of the Ernst & Young and Ling & Petrova studies included:
- Like-kind exchanges encourage capital investment. On average, taxpayers purchased replacement property that was approximately thirty-three percent more valuable than their relinquished property;
- Elimination would increase the cost of capital and slow the velocity of investment;
- Like-kind exchanges contribute significant federal tax revenue. Thirty-four percent of exchanges were only partially tax deferred; some federal tax was paid in the year of the exchange. Additionally, eighty-eight percent of replacement properties are eventually sold in taxable sales rather than in a subsequent exchange, resulting in higher taxes paid due to increased capital investment. Elimination would result in less federal revenue.
- Like-kind exchanges create jobs. Real estate acquired through a like-kind exchange is associated with greater investment and capital expenditures (job creating property improvements) than properties acquired without the use of a like-kind exchange.
- Elimination of §1031 would impact the overall economy, with an unfair concentration in certain industries including real estate, construction and equipment manufacturing and leasing.
The complete Ernst & Young and Ling & Petrova studies can be found at: http://www.ipx1031.com/wp-content/uploads/2015/03/EY-1031-Economic-Study-3-2015.pdf and http://www.ipx1031.com/wp-content/uploads/2015/07/Ling-Petrova-Economic-Impact-of-Repealing-or-Limiting-Section-1031.pdf.
Both studies quantify that like-kind exchanges are important to a healthy economy. They increase transactional activity, provide an incentive to improve properties and increase investment in the US. Make sure your elected representatives know the facts. Click here to send them a letter telling them that §1031 is important to you and your livelihood.
Jim Miller is the Assistant General Counsel for IPX1031® a Qualified Intermediary, a national leader in §1031 tax-deferred exchange transactions and a wholly owned subsidiary of Fidelity National Financial. He is an approved LANDU instructor for the “Tax Deferred 1031 Exchanges” course, “Advanced Tax Deferred 1031 Exchanges for Land Professionals” course and helped author the ALC Exam and the “ALC Core Course Manual.” Miller can be reached at 602-850-8630 or at firstname.lastname@example.org. To reach your closest IPX1031® office, call 888-771-1031 or visit www.ipx1031.com.