How to Use a 1031 Exchange to Defer Capital Gains

How to Use a 1031 Exchange to Defer Capital Gains

A 1031 exchange is a tax-deferred swap of investment properties. It allows you to sell one property and buy another without paying immediate capital gains taxes. However, there are rules to follow, such as the properties being like-kind and the funds being held in escrow. If done correctly, there is no limit to the number of exchanges you can make. It can also apply to former principal residences under specific conditions.


A 1031 exchange allows for the swap of investment properties, deferring taxes in the process. It enables investors to change their investment form without triggering immediate tax liabilities. The frequency of exchanges is unlimited, allowing gains to be rolled over to new properties. Taxes are postponed until the property is sold for cash, with a single tax payment based on long-term capital gains rates. Lower-income taxpayers may qualify for a 0% tax rate in certain cases.

To qualify for a 1031 exchange, the properties involved must be of like-kind, which may not be as straightforward as it sounds. For instance, you can exchange an apartment building for raw land or a ranch for a strip mall. The rules for like-kind exchanges are surprisingly flexible, even allowing the exchange of one business for another. However, it's important to be aware of potential pitfalls.

The 1031 provision primarily applies to investment and business properties, although there are specific conditions under which it can be used for a former principal residence. Additionally, there are limited ways to utilize a 1031 exchange for swapping vacation homes, but this option is more restricted compared to the past.

Depreciable Property Rules

During a 1031 exchange, special rules come into play regarding depreciable properties. This includes the possibility of triggering depreciation recapture, which is taxed as ordinary income. In general, exchanging similar types of properties can help avoid depreciation recapture.

However, swapping between different types of properties, such as improved land with a building and unimproved land without a building, may result in recapturing previously claimed depreciation as ordinary income. Due to the complexities involved, seeking professional assistance is advisable during a 1031 exchange. Professionals can provide guidance, ensuring compliance with regulations and helping navigate the intricacies of the process effectively.

What's Changed in the 1031 Rules

Under the previous tax law, certain types of personal property were eligible for a 1031 exchange. However, under current regulations, only real property qualifies for such exchanges. The Tax Cuts and Jobs Act introduced a transition rule that allowed for a 1031 exchange of qualified personal property in 2018 if specific conditions were met. It's important to note that this rule is specific to each taxpayer and does not permit a reverse exchange.

Rules and Timelines

In property exchanges, direct swaps between two parties are uncommon due to the difficulty of finding exact matches. As a result, alternative exchange methods, such as delayed or three-party exchanges, are often used. These methods involve the assistance of a qualified intermediary to facilitate the exchange. Timing rules play a vital role in the successful execution of these exchanges.

45-Day Rule

In a 1031 exchange, there are important rules regarding the designation of a replacement property. After your property is sold, the cash proceeds must be received by the intermediary, and you cannot directly receive the cash to maintain the 1031 treatment. Within 45 days of the sale, you must provide a written designation of the replacement property to the intermediary, clearly specifying the property you intend to acquire. According to the IRS, you can designate up to three replacement properties, with the requirement of eventually closing on at least one of them. In certain cases, additional properties can be designated if they meet specific valuation tests.

180-Day Rule

In a delayed exchange, the second important timing rule pertains to the closing of the new property. It is crucial to complete the purchase of the replacement property within 180 days from the date of the sale of the old property. These two time periods occur simultaneously, starting from the closing of the sale of your property. For instance, if you designate a replacement property precisely 45 days after the sale, you will have 135 days remaining to finalize the closing of the replacement property.

Reverse Exchange

In a 1031 exchange, it is possible to purchase the replacement property before selling the old one and still meet the qualification requirements. The same time frames of 45 days and 180 days apply in this scenario as well. To be eligible, you must transfer the new property to an exchange accommodation titleholder, identify a property for exchange within 45 days, and then finalize the transaction within 180 days from the date of acquiring the replacement property.

Tax Implications of the 1031 Exchange

In a 1031 exchange, there might be cash remaining after the acquisition of the replacement property, known as boot. This cash will be taxed as partial sales proceeds. It is crucial to consider loans and debts associated with the relinquished and replacement properties. Even if no cash is received, a decrease in liability will still be treated as income. Careful consideration of these factors is essential to avoid potential complications and tax obligations in the exchange process.

Vacation Homes

Congress made changes in 2004 to limit the use of 1031 exchanges for vacation homes. However, there is still a way to convert a vacation home into a rental property and qualify for a 1031 exchange. By renting out the property for some time and treating it as an investment property, you can proceed with the exchange. It is important to follow the guidelines set by the IRS, such as having tenants and conducting the rental in a businesslike manner. Simply offering the vacation property for rent without tenants would disqualify it from a 1031 exchange.

Moving Into a Swap House

When using a property obtained through a 1031 exchange as a new home, specific rules must be followed. The IRS introduced a safe harbor rule in 2008 to determine if a replacement dwelling qualifies as an investment property. This rule states that the property must be rented to someone else for at least 14 days at a fair rental, and personal use should not exceed 14 days or 10% of the rental period. It's important to note that immediately converting the new property into a principal residence and claiming the $500,000 exclusion is not allowed.

Previously, investors could exchange rental properties, live in them for some time, and benefit from the principal residence gain exclusion. However, under current regulations, if the property acquired through a 1031 exchange is later sold as a principal residence, the exclusion does not apply for five years from the acquisition date. This means that the tax break for principal residences will only be available after a longer waiting period.

1031s for Estate Planning

A potential drawback of 1031 exchanges is that the tax deferral will eventually come to an end, resulting in a significant tax bill. However, there is a solution to this issue. Tax liabilities cease upon death, which means that if you pass away without selling the property acquired through a 1031 exchange, your heirs will not be responsible for paying the deferred taxes. Additionally, they will inherit the property at its current market value. This aspect makes 1031 exchanges a valuable tool for estate planning purposes.

Reporting 1031 Exchanges to the IRS

To comply with IRS regulations, it is necessary to inform them about the 1031 exchange by filling out and submitting Form 8824 along with your tax return for the year in which the exchange took place.

The form will ask for details about the properties involved in the exchange, including descriptions, dates of identification and transfer, any relationship with the other parties involved, and the value of the like-kind properties. You will also need to disclose the adjusted basis of the property you gave up and any liabilities assumed or relinquished. Accuracy and correctness are crucial when completing the form. Failing to adhere to the rules may result in substantial tax liabilities and penalties imposed by the IRS.

What About Principal Residences?

Normally, a principal residence does not meet the criteria for a 1031 exchange since it is primarily used for personal living and not held for investment purposes. However, there is a potential workaround. If you rent out your principal residence for a significant time and refrain from residing there yourself, it can be considered an investment property. In such cases, it may become eligible for a 1031 exchange.

What About a Second Home?

To be eligible for a 1031 exchange, the property involved must be real property held for investment purposes. Simply having a regular vacation home won't meet the criteria, unless the property is rented out and generates rental income.

1031 Exchange and Property Ownership Change

To ensure compliance with 1031 exchanges, it is recommended to hold onto the replacement property for a significant time before transferring ownership. Selling the property shortly after acquiring it may lead the IRS to question whether it was truly intended for investment purposes, which is a key requirement for 1031 exchanges.


Kim, a property owner, has been informed by her real estate broker about a commercial property available for purchase at $5 million. Currently, her office building is valued at $4 million, double what she initially paid for it five years ago. The 1031 exchange presents an opportunity for Kim to sell her office building and use the proceeds to acquire the larger replacement property, all while deferring tax liabilities. This allows her to invest the additional funds gained from deferring capital gains and depreciation recapture taxes into the new property without immediate tax concerns.

1031 Exchange Depreciation Recapture

Depreciation is a tax benefit that allows individuals or businesses in various industries to deduct the costs associated with the wear and tear of an asset over time. When the asset is eventually sold, the tax authorities may recapture some of the previously deducted amounts and include them in the taxable income.

One strategy to delay the tax consequences of depreciation recapture is through a 1031 exchange. This exchange involves transferring the cost basis from the old asset to a new one that replaces it. By doing so, the taxpayer can continue to benefit from depreciation deductions as if they still owned the original asset.

While depreciation and 1031 exchanges are commonly used in real estate investment, these concepts can apply to other industries as well, providing tax advantages and opportunities for asset management and reinvestment.


A 1031 exchange is a valuable tax-deferred strategy utilized by astute real estate investors to enhance their wealth-building capabilities. However, due to the intricacies involved and the multitude of complex moving parts, comprehending the rules alone may not be sufficient. Even experienced investors often find it necessary to seek professional assistance in navigating the intricacies of this process and ensuring a successful exchange.

1031 Exchange