Complex 1031 Exchange Question--Please Help!

[Clay Manship]

Hi to all you tax know-it-alls and 1031 exchange folks. With anyone who has experience in the field, I am really in need of your detailed advice concerning this deal I have going on. Please see below:

In September of 2014, I purchased a 4-unit building as a long-term hold in my personal name ("MANSHIP,CLAY"), to add value and increase rents as tenants rolled. However, as tenants moved out in the spring, a trend in the market allowed for these units to each be flipped and subdivided as luxury condo units. As I started to begin this process with an empty building, another local investor approached me an offered me a favorable price to sell and walk away from the deal. This would result in about $50,000 in equity for me to play with.

However, it is important to realize that, behind the scenes, my business partner (twin brother) and I own this project 50/50--although it is currently owned in my own personal name. We have an LLC where we are each 50/50 partners, and ideally would like to quitclaim the property to this entity, sell the property, and then 1031 all of the $50,000 proceeds into the two new properties that we would then be identifying.

Further, my partner/brother and I have already identified two new properties that we will be rolling the proceeds into. They are identical side by side duplexes not far from the property we are selling. I would be putting the property I am purchasing in my own personal name, and the same would go for him. Our targeted closing date is on July 31, 2015.

My question is this:

Is there a way for my brother and I to both benefit from a 1031 exchange here, although the property is currently titled under my own name? If I were to quitclaim the property to our LLC, would we then be able to split up the equity (as we will be anyway) and tax-defer the proceeds and roll them into the properties we have already identified? Below is our ideal scenario:

Total Sales Price: $135,000

Total Equity Gain: $50,000

Each Partner's Share: $25,000

1. Realize and Pay Tax on $12,500

2. Roll and 1031 Exchange $12,500 on property that is currently under contract

The same exact scenario would go for my brother/partner. Any help would be appreciated--looking to see what the best course of action here is, and need to start soon! Happy to provide any other information that might be necessary as well. Please and thank you!

[Bill Exeter]

Hi Clay,

If I understand the post correctly, you and your brother acquired the property with the intent to hold for long-term investment purposes, but legal title is held only in your name  even though you and your brother technically own the property 50/50 as individuals.  Correct?  Did you each report 50% of the investment property ownership on your individual tax returns? 

One of the most important elements in order to qualify for 1031 Exchange treatment is your intent to hold the property for rental, investment or business use purposes.  You clearly had the intent to hold, but you have a short-term holding period, which can make an audit more difficult to prove that you had the intent to hold for rental/investment purposes. 

Contributing the property into the LLC, which is owned by the two of you and therefore treated as a partnership for tax purposes, would further complicate your ability to prove that you each individually had the intent to hold for rental/investment purposes and the partnership would likely not be able to prove that it had the intent to hold for investment purposes. Remember that the LLC is a completely separate legal entity. It is not the same as you and your partner.

You should have your accountant review the entire scenario to ensure that the ownership is truly owned by each of you on a 50/50 basis for income tax purposes.  I would then quit claim deed the property into both names so that legal title reflects the true ownership.  Run this by your attorney first to make sure that you are not creating other problems.  I would then structure two (2) 1031 Exchanges, one under each of your names as individuals so that you can each exchange into what ever properties you so choose.  You can buy together, or you could buy separately. 

There are many moving parts here, so it is important that you run the entire situation past your legal and tax advisors before you proceed in order to prevent further complicating your situation.