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Property exchange issue-Am I all wet here?

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    Property exchange issue-Am I all wet here?

    Sorry for the long post.

    Two brothers (A & B) have an executed written agreement dated in 2002 setting forth a purchase agreement in which the first brother (A) will exchange his farm ground and his personal residence located on his farm for the second brothers (B) farm property plus the receipt of $ 30,000. The agreement formalized A’s previous written request made over 15 years ago and accepted by B. This purchase was to take place upon the death of the A. A is now confined to a nursing home with no expectation of returning to his home (since 18 months ago). His daughter has power of attorney for all his affairs and she and B now wish to do a 1031 exchange of the farm parcels. B wishes to acquire the residence for investment. Before the exchange takes place the residence can be deeded separately and purchased by B for the agreed price of $ 30,000 as stated in A’s letter and the 2002 written agreement. We are getting current appraisals for both farm parcels and the residence. However, it appears that there will be a large disparity in current FMV between the two parcels with brother A giving up greater value than he would receive. There are no mortgages on any of the properties and no other considerations to be given or received.

    Question 1: Can we do a valid 1031 exchange were the TOTAL consideration given and received are not equal? Ie the value of the qualified property, other property, cash, ect given are not equal to the values received.

    Question 2: If not, do we have a bargain sale? or gift ? ie Would A have to recognize taxable income for the excess of FMV received vs FMV given up over the cost basis in his farm parcel?

    A’s attorney (who says he has done many 1031 exchanges) is taking the position that once the residence is removed from the farm parcel that the 1031 exchange can be done with no adverse tax consequences to either party. He insists that the FMV at the time of the original agreement is controlling and that they were essentially equal at that time. I asked him for support for that position, but he has not provided any. I do not see how we can use those values on the 8824. Correct?

    I had previously suggested that gifts might be made for the excess of FMV for the residence and the farm parcel prior to 1031 land exchange, but the attorney did not want to use any of the gift tax credits at this time.

    If nothing is done now at the time of A's death, say 5 years down the road, I am very concerned that B will incurr a large tax liability on the purchase.

    I admit that I am at a loss as to how the properties can be exchanged without adverse tax consequences if the gift approach can not be used. I would sincerely appreciate input from others on this forum.

    #2
    I don't have all the answers but wanted to bump you

    back to the top.

    Question 1: Can we do a valid 1031 exchange were the TOTAL consideration given and received are not equal? Ie the value of the qualified property, other property, cash, ect given are not equal to the values received.

    I'm lacking a cite on this but don't see why the properties have to be equal.

    Question 2: If not, do we have a bargain sale? or gift ? ie Would A have to recognize taxable income for the excess of FMV received vs FMV given up over the cost basis in his farm parcel?

    Perhaps a bargin sale but no income recognized. Could be some estate issues, will there be a taxable estate?

    A’s attorney (who says he has done many 1031 exchanges) is taking the position that once the residence is removed from the farm parcel that the 1031 exchange can be done with no adverse tax consequences to either party. He insists that the FMV at the time of the original agreement is controlling and that they were essentially equal at that time. I asked him for support for that position, but he has not provided any. I do not see how we can use those values on the 8824. Correct?

    I agree, current FMV should be used on the 8824.

    I had previously suggested that gifts might be made for the excess of FMV for the residence and the farm parcel prior to 1031 land exchange, but the attorney did not want to use any of the gift tax credits at this time.

    I don't think a gift has been made.

    If nothing is done now at the time of A's death, say 5 years down the road, I am very concerned that B will incurr a large tax liability on the purchase.

    Why do you thnk that? I worry more about Estate tax issue and the attorney should be knowledgeable on those issues.
    In other words, a democratic government is the only one in which those who vote for a tax can escape the obligation to pay it.
    Alexis de Tocqueville

    Comment


      #3
      Thanks for the reply

      "I'm lacking a cite on this but don't see why the properties have to be equal"

      I agree that the like kind properties may not be equal (probably rarely are), but all the examples that I have seen in texts or from tax schools the TOTAL (values after you take into consideration cash, non-qualifying propertie,ect) are equal. I am concerned that if this does not qualify as a non-taxable exchange, want is the tax effect to each brother?

      "Perhaps a bargin sale but no income recognized. Could be some estate issues, will there be a taxable estate?"

      I am not sure how you report a bargain sale. Do you ignore the FMV and just use the actual cash selling price to figure the gain? Any basis adjustment because it is a bargain sale?

      A's assets should be under $ 500,000 after the transaction. Given his advanced age & poor health, I am not sure that estate tax issues are that pressing.

      Can you give me some additional guidance here?
      Thanks

      Comment

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