Paying yourself back at closing for rehab costs during 1031

Paying yourself back at closing for rehab costs during 1031

Investor · Greenville, SC · Member since 2017 · 18 posts · 5 votes

I hope someone can answer this for me in a way I understand it. We have a single family rental home we are selling in a 1031 exchange. Prior to listing we renovated the home. I asked our 1031 company how we should handle all the renovation costs we incurred...should we add it to the basis and not claim it as an expense? They gave me another option, which I ran past my CPA. They said we could write ourselves a promissory note for the cost of the rehab and get paid back at closing. They said the only thing about doing this is that we would have to add that as extra debt replacement on the new property. The problem I am having is that both the intermediary and the CPA agree this can be done, but no one is explaining how.

My questions with how....How does that debt move to the new property? We are already getting a bigger mortgage on the next rental property. Would that bigger mortgage make up the extra debt?

It seems to me, we would write the note as if we were hiring ourselves as contractors and the contractors agreed to get paid at closing. So the note would be in effect during reno and paid off completely at closing.

Any insight would be greatly appreciated.

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  • Dave FosterBusiness Member
    Qualified Intermediary for 1031 Exchanges · St. Petersburg, FL · Member since 2013 · 9k+ posts · 9k+ votes
    4y

    @Christina Potosnak, Just a promissory note that "disappears" is a very risky strategy.  As part of the normal escrow process all loans secured by the property must be paid off to sell the property.  So a promissory note that is a lien against the property has to be paid off.  That might work.  The mechanics are that you must write a mortgage to yourself and record it as a lien against the property  you are selling.

    BUT... there are some potential problems with this that your QI should have informed you of .

    1. If the recorded promissory note is to you the IRS will look at this as you paying yourself out of the profits and that would be a taxable event.  You would need to have the check made to a 3rd party (contractor, etc).  

    2. A refinance (or putting a recorded mortgage) on a property right before closing is also a red flag with the IRS.  

    3. Your CPA can certainly treat this the way they describe.  But if ever audited these two things would get your exchange kicked out.

    You are far better off simply completing a full 1031 exchange.  And then after the exchange is complete do an immediate cash out refinance out.  This gets you the cash to. pay yourself back and does not create a taxable event or potential disallowed exchange.

    The 1031 Investor5140 Reviews
  • Investor · Greenville, SC · Member since 2017 · 18 posts · 5 votes
    4y

    @Dave Foster thanks for your insight! The post closing cash out refi is an option. We would have plenty of equity in the replacement property. Since posting this i was able to get clarification from our QI. They said the same thing about a recorded note against the property.

    The debt payoff would go to the LLC not to our names. We keep very tight books and certainly don't want to do anything that isn't permissible. If it is permissible, but risky of an audit, you think there may be a possibility of the IRS throwing out the entire exchange instead of just charging us tax on the promissory note amount? The amount is very small in the 10k range.

  • Dave FosterBusiness Member
    Qualified Intermediary for 1031 Exchanges · St. Petersburg, FL · Member since 2013 · 9k+ posts · 9k+ votes
    4y

    @Christina Potosnak, The IRS is not a tame critter - so they'll have their choice.  Who knows ??:)

    If your LLC is a disregarded entity and does not file it's own tax return then the repayment of your promissory note will still show up on your personal tax return. Very transparent yes! But still with the same risks. The one that concerns me the most is that you're already under contract for the sale. So putting a recorded mortgage on it at this late date would almost surely be disallowed if audited.

    It would be nice to have clearer indications from the IRS.  But many times I think they like the ambiguity.  It's lets them do what they want when they want!!

    The 1031 Investor5140 Reviews
  • Investor · Greenville, SC · Member since 2017 · 18 posts · 5 votes
    4y

    @Dave Foster ok, thanks again. It seems a bit much for just 10k back in our pockets.

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