1031 Exchanges May Benefit Investors Facing Foreclosure

Scott Saunders
June 27, 2008 — 2,108 views  
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A tax liability could occur if the indebtedness encumbering the property is greater than the taxpayer’s adjusted basis for income tax purposes. This happens because the transfer of the property to the lender or short sale buyer results in debt forgiveness. This usually happens in cases where the relinquished property is highly leveraged through cash out refinancing, has declined in value or has been significantly depreciated. The capital gain is recognized whether the property is conveyed through foreclosure, short sale or a deed in lieu of foreclosure. In these instances, taxpayers have a capital gain tax liability even though they will not receive cash with which to pay the tax liability.

Remarkably, all is not lost to a taxpayer who has some cash and would like to continue to invest in real estate. If the transaction is properly structured, the taxpayer could elect to complete a §1031 tax deferred exchange treating the mortgaged property as the relinquished property. In order to qualify, the transaction should be structured as either a short sale or a deed in lieu of foreclosure. If the property is foreclosed the transaction is not easily converted into an exchange because the transfer of the relinquished property occurs by operation of law. This leaves no room for an exchange agreement and the integration of a qualified intermediary into the transaction.

With a deed in lieu of foreclosure, it is critical that exchange documents be signed by the taxpayer prior to the property being deeded to the lender, as the deed to the lender commences the running of the 45 day identification period and the 180 day exchange period. During the exchange period, the taxpayer must acquire replacement property of equal or greater value to the relinquished property in order to defer 100% of their capital gain tax liability. The obvious hurdle to performing such an exchange is that the taxpayer must have enough cash available to make a down payment on the replacement property and be able to finance the remainder of the purchase price.

The above consequences highlight the need to involve legal and tax advisors in connection with all investment decisions. Failure to do so may result in a taxpayer incurring unintended tax liabilities that could have been deferred had the transaction been reviewed early on by the right professionals.

Scott R. Saunders is a Sr. Vice President with Asset Preservation, Inc., a leading national 1031 exchange qualified intermediary. Questions regarding 1031 exchanges can be directed to him at [email protected] or 888-531-1031.

Scott Saunders


Scott R. Saunders, Senior Vice President with Asset Preservation, Inc. Scott has an extensive background in Internal Revenue Code §1031 tax deferred exchanges, having been involved in structuring and overseeing over 50,000 transactions during his sixteen years in the exchange industry. Asset Preservation, a subsidiary of Stewart Title Company, is a leading national IRC §1031 "Qualified Intermediary" and has successfully completed over 130,000 1031 exchanges throughout the nation.