We are pleased to share this guest blog provided to our readers by IPX1031, the largest and one of the oldest Qualified Intermediaries in the United States.
Generally, no changes should be made to the way title to property is held shortly before or after property is sold/purchased via a 1031 Exchange. For example, if title to an apartment building is held by Lisa and Russell as husband and wife, title to the new Replacement Property should be held in the same manner.
However, sometimes a lender may require a change in title (“vesting”) as a condition to providing a loan for the new Replacement Property, such as owning the new property in only the name of the husband or wife. This situation could be problematic for spouses who have entered into a 1031 Exchange since appeasing the lender may invalidate their 1031 Exchange.
The good news is that an IRS Code provision that created unlimited gifting between spouses may help address these scenarios. In 1984, Congress passed IRC Section 1041. This law, which remains in effect today, created unlimited tax-free gifting between spouses. Since this issue has not been revisited since the enactment of Section 1041, it is not clear if the IRS will still issue the same ruling today as it did in TAM8429004*. Because it is unresolved, many tax advisors suggest the following with respect to the spousal title scenarios below:1:12
1) One spouse is on title to the Relinquished Property, but the lender wants both on the title to the Replacement Property
Have counsel prepare an agreement that the co-signing spouse is doing so in trust for the other spouse; the Replacement Property is the separate property of other spouse and that no gift has occurred.
2) If there is no lender requirement – only the spouse on title to the Relinquished Property should be on title to the Replacement Property
The property can be placed in a revocable living trust with the other spouse named as the beneficiary to protect from an untimely death until they can safely be added to title.
3) If both spouses are on title to the Relinquished Property and lender only wants only one on the Replacement Property, there is not a clear answer
The spouses may need to find a new lender or rely on the unlimited gifting provision of Section 1041.
Taxpayers should always consult with their tax advisor for advice with respect to their individual situation.
Please contact us for more information!
*Technical Advice Memorandum which is part of the 1984 Section 1033
https://legal1031.com/exchange_resources/same-taxpayer-requirements-for-spouses/