How Does the ‘Rev Proc 2000–37’ Impact Real Estate Transactions?

In many real estate transactions, the delayed 1031 Exchange is the most popular way to defer capital gains taxes. This is also the traditional process, but it can be unsuitable for some cases. In environments with inventory shortages or competitive markets, selling first before buying can be an impractical choice. Doing the inverse order was once a risky choice, but the implementation of Revenue Procedure 2000-37 made reverse exchanges possible.

Realized 1031 sheds light on how this revenue procedure opened new strategies and possibilities for real estate investors. That way, you’ll understand how the framework can be applied to your unique circumstance. Keep reading to learn more.

Defining Revenue Procedure 2000-37 Real Estate Exchanges

A forward or delayed 1031 Exchange is the most traditional like-kind swap, and it follows strict rules set by the IRS. Reverse exchanges existed, but only because there were no definitive restrictions on the order of the traditional exchange. In other words, Section 1031 technically allowed the replacement property to be bought first before selling the relinquished property due to the mere fact that there was no direct prohibition or formal framework explicitly preventing it.

Revenue Procedure 2000-37 addressed this gap by serving as the framework for such exchanges. There was finally safe harbor language defining what an investor must do to successfully pull off the reverse exchange and minimize IRS scrutiny.

Rev Proc 2000-37 Impact on Real Estate Transactions

Before Code 200-37 (shorthand for 2000-37), reverse exchanges were risky. They existed largely in gray areas based on private rulings and court decisions. When the new revenue procedure was put into effect, it made a lasting impact on how sophisticated real estate transactions are structured.

Most importantly, Code 200-37 expanded the available toolkit for investors, especially with regard to tax management. Now, reverse exchanges can be utilized with confidence. The transaction is made more predictable and defensible in the IRS’s eyes.

Of course, reverse exchanges are not without their own set of challenges. The added complexity can increase costs, for example. However, even with these hurdles, reverse exchanges are still worth the effort because they provide deal certainty, tax deferral, and flexibility.

Reverse Exchanges vs Traditional Swaps

The main difference between traditional and reverse exchanges is the order of property acquisition and disposition. For traditional exchanges, you sell the relinquished asset before acquiring the replacement one. A reverse exchange flips this process, but introduces one issue: the possibility of an exchanger holding title to both properties simultaneously. This is prohibited, and doing so invalidates the exchange.

Given this risk, Revenue Procedure 2000-37 introduced the Exchange Accommodation Titleholder (EAT) and the Qualified Exchange Accommodation Arrangement (QEAA). Under this contract, the EAT holds title to either the replacement or the relinquished asset during the exchange period.

The procedure also establishes Reverse 1031 Exchange rules. One critical requirement is the strict timelines that mirror traditional 1031 exchange rules: the relinquished property must be identified within 45 days, and the exchange must be completed within 180 days.

Why Reverse Exchanges Are Preferred by Some Investors

For many seasoned investors, reverse exchanges provide various advantages that make them a better choice than traditional swaps.

• Secure Replacement Property: In fast-moving markets, a reverse exchange allows you to quickly secure a desirable property before it’s purchased by another investor.

• Compliance With 45-Day Identification Period: Since the replacement property is already acquired, you will have an easier time complying with the 45-day identification period.

• Greater Flexibility: Reverse exchanges provide added flexibility for investors repositioning assets or restructuring portfolios. Compared to traditional exchanges, you have more control over the assets you want to acquire, unimpeded by tight IRS deadlines.

• Sale Certainty: The exchange is anchored by a confirmed acquisition. The only other sale you’ll need to handle is that of the relinquished property, reducing sale uncertainty and the risk of failed exchange.

• Alignment With Long-Term Investment Strategy: You can structure your transactions around opportunity and timing rather than being dictated solely by exchange deadlines, ensuring that you can acquire assets that will benefit your long-term financial goals.

Wrapping Up: Understanding 2000-37 Safe Harbor Transactions

Revenue Procedure 2000-37 was an impactful set of guidelines that officially recognized reverse exchange. Investors are able to secure the replacement property first in highly competitive markets while lowering the risk of IRS scrutiny. As long as you follow IRS guidance on reverse exchanges, then you can take advantage of the flexibility and control it offers.

Sources:

https://www.irs.gov/pub/irs-drop/rp-00-37.pdf

https://www.sec.gov/Archives/edgar/data/875582/000120677406001078/nt110590ex105.htm

https://www.investopedia.com/financial-edge/0110/10-things-to-know-about-1031-exchanges.aspx