While timing is important in the 1031 exchange process, the taxpayer’s intent is everything. According to Section 1031 of the U.S. Internal Revenue Code, a 1031 tax-deferred exchange has a sequence of actions that must be completed within a strict time frame to qualify. Outside of the 45-day identification period and the 180-day exchange period of a property, which run concurrently and start counting when the sale of your property closes, there is no law regarding the minimum or maximum time of ownership, the number of times you can do a 1031 exchange, or the frequency.
Although there is no law regarding the number of times you can do a 1031 exchange or the holding time on a property, your safest bet is to use best practices to avoid raising any red flags with the IRS.
Are There Holding Period Requirements?
There is a general consensus that there is a one-year hold period before doing an exchange. This is due to the fact that in 1989, Congress proposed having a one-year hold on the property before exchanging in HR 3150. The one-year proposal is likely because a short-term capital gain and a long-term capital gain differentiates at one year. This was never passed and written into the tax code, but many advisors use this as a rule of thumb.
The holding time on a 1031 exchange property is ambiguous. The U.S. tax code doesn’t have a magic number for the amount of time required for the investor to hold a property. In the 1953 case Allegheny County Auto Mart v. C.I.R., an exchange was approved after being held for five days while in the 1967 Klarkowski v. Commissioner case, a property held for six years was disqualified.
Determining whether or not an exchange follows Section 1031 is done on a case-by-case basis. Time is only a single determining factor for intent at the time of property acquisition.
IRC Section 1031 states that the property acquired by the taxpayer must be held for use in trade, business, or investment. Intent is subjective to the investor at the time of acquisition, but the IRS looks at the facts to determine qualified intent - frequency and sustainability being two of them.
Sale of the property shortly after acquisition could lead the IRS to believe the intention was to flip the property and sell for profit rather than hold for business or investment. In that case, the exchange would fall under “dealer status” and likely fail.
Here is what the IRS is likely to focus on regarding intent:
The purpose of initial property acquisition.
The purpose of the subsequent holding of the property.
Property usage and whether it aligns with investment or business purposes.
Tax history of the property demonstrating investment and/or business use.
The extent and nature of the taxpayer’s efforts used in soliciting buyers for the sale of the property.
There’s no limit on the number of times you can do a 1031 exchange because qualified intent is how you will be judged. The IRS provides some guidance, but there is no rule to guarantee taxpayer safety. By working with a Qualified Intermediary, you can build your case for intent for a smooth, successful exchange.
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