1031 exchange: selling as individual, buying as LLC?

[Jean Bolger]

So, I have a property that is held jointly by my husband and me (title is in both our names). We'll be selling this as part of a 1031 exchange, and I would like to take title to the replacement properties in a LLC (with both of us as partners in the LLC) . I have read two things that are causing confusion for me. (First) that there is no problem doing this if you are an individual owner moving to a solo LLC because the IRS sees these as one and the same, and, (Second) that you can't sell as an individual and buy as a corporation. I may be seeing problems that aren't there, but what does this mean for us as joint owners? Can we just move into a shared LLC? Or would we have to put the relinquished property into a LLC before we do the exchange? (All of our finances are joint, file taxes jointly, etc- if that matters..) Thanks for any clarification!

[Bill Exeter]

Hi Jean,

It depends on the state that you live in. The IRS came out with a ruling that says limited liability companies that have a husband and wife as the sole members and who live in a community property state would still be treated as a single member LLC and therefore a disregarded entity.

So, you could sell as individuals and then acquire the replacement property in a single member LLC/disregarded entity and be treated the same for tax purposes if you live in a community property state.

However, if you do not live in a community property state, then we have to assume, as this point, until the IRS rules otherwise, that the LLC would be treated as a partnership for tax purposes and it would not qualify for tax-deferred exchange treatment. This would be the case whether you bought the property initially through the LLC or as individuals and then contributed the property into the LLC immediately afterward.