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Drop & Swap in a 1031 Exchange

It is common for groups of investors who jointly own rental properties to structure their ownership as a Liability Limited Company (LLC) partnership. We often receive calls from partners requesting information on how to utilize the 1031 exchange process to defer taxes on a contemplated sale and there is often a surprise when they learn that all partners in the LLC must move in lockstep together to purchase replacement properties.

Under applicable IRS tax code, LLC partnership interests are not exchangeable, and the titleholder of record i.e., the LLC that sells the relinquished property, must acquire the replacement property.  For example, if the three LLC partners of a rental property sell the property, that same partnership must buy and hold title to the replacement property.  Individual partners who wish to leave the partnership and independently buy a replacement property for themselves with their share of the exchange will disqualify their exchange. 

Drop and Swap

“Drop and Swap” is an industry term that describes a process that would potentially allow LLC partners to independently complete 1031 exchanges without being tied to approval from the other partners. The process begins by first dissolving the LLC partnership and then reformulating it into Tenant-in-Common (TIC) ownership structure.  The distribution of LLC common interests in the property to the individual partners in the form of a TIC is called a “drop.” 

When the restructured rental property is sold, each TIC owner can then use their pro rata sales proceeds to independently purchase or trade into qualifying 1031 replacement properties (“the swap") thereby differing their tax obligations, or they can take the cash out of the exchange and pay taxes on whatever portion that is not exchanged. 

Timing Considerations

A real estate investor doing an exchange has the obligation to show that they have an “intent to hold” the property as long term investment. While the IRS does not define the minimum required holding period for an acquired property, most tax advisors recommend a minimum holding period of two tax years or longer. 

What would happen if you decided to “drop and swap” after receiving a sales offer or near to the time when the property will be put up for sale? 

In those circumstances there is heightened risk that the tax authorities would disallow the exchange and argue that your intent was not to hold but to avoid paying taxes. 

Other Considerations

If you have a loan on your property, plan on seeking approval from your lender prior to initiating a drop and swap. There may be fees charged by your lender to review applicable documents – or they may simply refuse to allow the change in ownership structure. Since each TIC investor is a borrower, the lender is likely to conduct a financial review of all investors and also require a new property appraisal. Lender approvals can take a significant amount of time to occur, and a successful outcome is often not guaranteed. 

Summary

If you own property in an LLC but wish to have the added flexibility for you and your other partners to potentially go separate ways in the future, a drop and swap may be a solution worth exploring. Be aware that a drop and swap is a complicated transaction that will require close cooperation with all stake holders.  Below are some practical tips that we have learned from investors and their CPAs and attorneys.

  • Complete the LLC to TIC restructuring well in advance of the planned sale
  • Maintain the TIC ownership structure for a sufficient period to establish “intent to hold”
  • Maintain written records to establish evidence of intent to hold the relinquished or replacement property for business or investment purposes
  • Review IRS Revenue Procedure 2002-22 to make sure you follow appropriate procedures to properly qualify your TIC for proper tax treatment
  • When selling your rental property, make sure that all TIC members are listed as sellers 

For more information on 1031 exchanges and suitable 1031 replacement properties, please contact us today for a free consultation. 

Disclaimer: While we generally believe the information in this blog to be accurate, we can make no assurances and advise all readers to check with their personal legal and accounting advisors to determine applicability in specific investor situations. 

Please feel free to download our FREE ebook to learn more about real estate tax deferral strategies!


Help Save 1031 Exchanges
Write to your Member of Congress and Senators urging them to oppose restricting Section 1031 like-kind exchanges. As part of the American Families Plan, the Biden Administration has proposed eliminating the application of Section 1031 for gains greater than $500,000. Like-kind exchanges have been part of the U.S. tax code since 1921 and are one of the tax code’s most powerful economic tools. It is critical that we all vigorously and visibly oppose this proposal. Make your voice heard with a pre-filled letter, which you can customize to add personal anecdotes or powerful client stories to highlight the positive impact of Section 1031 like-kind exchanges. Take action today by clicking HERE.

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Paul Getty

Paul Getty is a licensed real estate broker in the state of California and Texas and has been directly involved in commercial transactions totaling over $3 billion on assets throughout the United States. His experience spans all major asset classes including retail, office, multifamily, and student, and senior housing. Paul’s transaction experience includes buy and sell side representation, sourcing and structuring of debt and equity, workouts, and asset and property management. He has worked closely with nationally prominent real estate brokerage and investment organizations including Marcus Millichap, CB Richard Ellis, JP Morgan, and Morgan Stanley among others on the firm’s numerous transactions. Paul also maintains a broad network of active buyers and sellers of commercial real estate including lenders, institutions, family office managers, and high net worth individuals. Prior to founding First Guardian Group/FGG1031, Paul was a founder and CEO of Venture Navigation, a boutique investment banking firm specializing in structuring equity investments made by institutions and high net worth individuals. He possesses over 35 years of comprehensive worldwide business management experience in environments ranging from early phase start-ups to multi-billion-dollar corporations. His track record includes participation in IPOs and successful M&A activity that has resulted in investor returns of over $700M. Paul holds an MBA in Finance from the University of Michigan, graduating with honors, and a Bachelor’s Degree in Chemistry from Wayne State University. Paul Getty holds Series 22, 62, and 63 securities licenses and is a registered financial representative with LightPath Capital Inc, member FINRA /SIPC. Paul is a noted speaker, author, and actively lectures on investments, sales, and management related topics. He is author of The 12 Magic Slides, Regulation A+: How the JOBS Act Creates Opportunities for Entrepreneurs and Investors, and Tax Deferral Strategies Utilizing the Delaware Statutory Trust (DST), available on Amazon and other retail outlets.

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