In most cases, you can’t use a 1031 exchange to defer capital gains taxes and depreciation recapture on primary residence sales. Properties eligible for a like-kind exchange must be used for investment or business purposes; primary residents don’t fall under this category.
However, exchanging an investment property acquired through a 1031 exchange and selling it later as a primary residence is possible. Thanks to the American Jobs Creation Act of 2004, you could accomplish that sale through the five-year rule.
Proper execution of the five-year rule could allow you to take advantage of IRC Section 121–”Exclusion of Gain from Sale of Principal Residence.” This legislation permits you to exclude up to $250,000 of capital gains from the sale of primary residential property (or $500,000 if you file jointly).
However, the exclusion applies only to the portion of the gain attributed to the property's use as a primary residence. Any gain from the prior investment period remains taxable.
Requirements of the Five-Year Rule
One mandate of the five-year rule is that you must own the property in question for at least five years. Breaking this down:
- You must own the replacement property obtained through a 1031 exchange for a period demonstrating intent to use it as an investment property. While no strict IRS rule mandates how long you must hold that asset, many tax professionals suggest that owning the property for at least two years will support investment intent.
- Once you convert the investment property into a primary residence, you must live in that residence for at least two years to fulfill the Section 121 requirements.
- You must file for the exclusion in the same tax year when you sell the property.
- Even if you qualify for a partial exclusion, depreciation recapture from the 1031 exchange is always taxable at a maximum rate of 25%.
Failure to follow the requirements means you could be liable for capital gains taxes and depreciation recapture from the previous exchange. Noncompliance could also reduce your credibility. As a result, any 1031 exchange you attempt in the future might raise red flags with the IRS.
Best Practices: Ensuring Compliance with the Five-Year Rule
Consider the following if you’re thinking about converting your exchange investment property into a primary residence in accordance with the five-year rule:
- Know the requirements. Before taking this course of action, be sure you understand the rules and mandates involved with Section 121 and the five-year rule.
- Plan ahead. Map out your investment goals and create a timeline. This can help you follow the required timing for investment and primary residence usage.
- Work with professionals. The 1031 exchange process is complex, and adding additional activities can lead to confusion. Partnering with your tax advisor and other experts provides guidance and resources to assist you.
In summary, combining the 1031 exchange process with Section 121 advantages is possible. In such a situation, adhering to the five-year rule is required. This approach can help improve your tax-advantaged strategy while moving you toward your investment goals.
The tax and estate planning information offered by the advisor is general in nature. It is provided for informational purposes only and should not be construed as legal or tax advice. Always consult an attorney or tax professional regarding your specific legal or tax situation.
