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Converting 1031 Investment Property to Personal Use

Are you considering selling your investment property in a 1031 exchange for a house in the country, a condo on the coast or a cabin in the woods? The 1031 exchange requires the replacement property to be held for “investment intent.” The IRS recognizes that many taxpayers acquire 1031 replacement properties that are intended primarily for investment purposes, but the taxpayer may also use the properties occasionally for personal use.   To help clarify the qualifications of such properties, the IRS issued Revenue Procedure 2008-16 providing taxpayers with a safe harbor under which a residential unit will qualify as investment property for §1031 even though a taxpayer occasionally uses the property for personal use.   The IRS will not challenge whether a residential replacement property qualifies under Section 1031 as property held for investment or held for productive use in a trade or business, if the qualifying use meets the following standards:   (a) The dwelling unit is owned by the taxpayer for at least 24 months immediately after the exchange (the “qualifying use period”); and (b) Within the qualifying use period, in each of the two 12-month periods immediately after the exchange, (i) The taxpayer rents the dwelling unit at a fair rental for 14 days or more, and (ii) The taxpayer’s personal use of the property does not exceed the greater of 14 days or 10% of the number of days during the 12-month period that the dwelling unit is rented at a fair rental.   The taxpayer should acquire the investment property with the intention of meeting such standards. Subsequently, a taxpayer may reassess their use of the replacement property. For example, in year three, after successfully meeting the parameters of Revenue Procedure 2008-16, the taxpayer may decide at such time to cease renting the property and convert the property to a primary residence or vacation home. At that time, the exchange transaction is well past and the taxpayer has established their investment intent in accordance with the safe harbor and the conversion of use in the property should not create tax risk. Furthermore, if the property is converted to a primary residence, there is an opportunity upon sale to benefit from IRC 121, the primary residence exemption.



If you plan on conducting business transactions in the State of New Jersey, it is imperative to find out if the sale is subject to the Bulk Sales Law.



California regulations employ a “Claw back” provision that requires any gain in property value accrued in California to be subject to California state taxes, regardless of whether or not that property was exchanged for one in another state.



There are some expenses that can be deducted from the 1031 exchange proceeds without resulting in tax consequences.



There are several 1031 exchange structures which included Forward Exchanges, Reverse Exchanges and Improvement Exchanges.



The gain, not the profit or equity, from the sale of the investment property is subject to a combination of capital gains taxes, Medicare tax, and the tax on the recapture of depreciation.



Exchangers have two important deadlines to meet in order to comply with IRC §1031 exchange requirements, which consist of the 45 day identification deadline and the 180 day exchange period.

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