稅例第1031 條 ─ 免稅交換入息樓宇

賣出入息樓宇所賺了的「資本增值」(CAPITAL GAIN) ,一定要在當年交稅(聯邦稅為20%,另加州稅,曾折舊的金額稅率為25%)。如要延稅,則必須用稅例第1031 條作免稅(其實是延稅)交換,將原來物業的資本增值和折舊,轉到新交換的入息樓宇上。

使用1031交換條例,必須十分謹慎,最好是有這方面經驗的會計師和地產經紀幫助。此外,不論是作「同時交換」(SIMULTANEOUS EXCHANGE) ,或作較常用的「延遲交換」(DELAYED EXCHANGE) ,通常都需要僱用一個「被認可的中間人」。「被認可的中間人」英文叫做QUALIFIED INTERMEDIARY,這類公司也叫做「促成人」(FACILITATOR) 或「幫助人」(ACCOMODATOR) ,它是一個獨立 (即與投資者沒有關系) 的機構,有些「中間人」是專門幫忙投資者作免稅交換的獨立公司,有些則是「產權公司」(TITLE COMPANY) 屬下的附屬公司

1031 稅例主要條款

  1. 需要以「同類」(LIKE-KIND)物業作交換。但「同類」的定義很廣闊,只要是賺取租金入息的物業便可。故此,柏文公寓可以換貨倉,空地可以換單一住宅,辦公大樓可換柏文公寓…..。在美國以外的物業不能作交換。 2. 需要換相等或更高市值的物業,而且淨值應全部放入新交換的物業上,即不能減少抵押貸款,否則有部份會成為「靴子」(BOOT) ,需要付資本增值稅。3. 需要按45/180 天條例,下面再作解釋。4. 需要由交易開始便申明為1031交換,而整個新舊物業交易過程都按交換)不是買賣)來進行。

    5. 需要避免「相等收取」(CONSTRUCTIVE RECEIPT) 情況,即交換者不能有機會取得交易的款項,故必須由一個「被認可的中間人」代辦。

45/180天條例

1031條例?面,有兩個時期十分重要。第一個是「訂明期」(IDENTIFICATION PERIOD) ,乃由原來物業交易完成開始的四十五天。第二個是交換期(EXCHANGE PERIOD),是由原來物業交易完成開始的一百八十天。這兩個日期十分嚴格,遲一天都會導致交換失敗,而失去延稅優惠。

請注意﹕一百八十天條例其實是「一百八十天或報稅限期兩者之間較早的日期」,所以在接近年終作1031 交換,有可能由原來物業交易完成開始,至明年四月十五日之間沒有一百八十天,在這個情況下,應該向稅局申請延期報稅。

訂明 (IDENTIFICATION) 注意要點

不論原來物業數目多少,在訂明期內,交換人必須按以下三個條例中的任何一項,以書面訂明交換物業﹕

  1. 三個物業條例﹕不論訂明物業之總值,訂明不超過三個物業。或2.兩倍價值條例﹕不論訂明物業之數目,訂明不超過原來物業價值兩倍的物業。或3. 百分之九十五條例﹕不論訂明物業之數目,將來真正交換物業的價值不少於訂明物業價值總和的百分之九十五。

訂明物業時,必須清楚地以書面在訂明期內通知「被認可的中間人」。

「中間人」提供的服務,可以全部用電話、傳真和郵件進行,故在三藩市地區以外的人,也可以用以上的中間人。他們收費一般分為兩種,一種是幾百元費用加上Escrow 帳戶內的利息由中間人公司收取;另一種是比較高的費用(大約一千元以上),但交換人可得到Escrow 帳戶內的利息。收費詳情應向中間人公司查詢。

「倒轉交轉」(REVERSE EXCHANGE)

通常做1031交換,都是先將本身物業交換出去,然後按上述45/180天日期的規則,去交換另一個物業。但是,在有些情況下,可能會先將新的物業交換進來,然後才將本身物業交換出去,這個情況叫做「倒轉交換」(REVERSE EXCHANGE) 。在二零零年十月二日,國稅局頒報了REVENUE OCEDURE 2000-37,正式承認「倒轉交換」的合法性。

REVENUE PROCEDURE 2000-37內,規定要合法地進行「倒轉交換」,必須符合兩個要求﹕

  1. 納稅人必須簽定一個「合資格的交換安排」文件(QUALIFIED EXCHANGE ACCOMODATION ARRANGEMENT或簡稱為"QEAA");2. 納稅人必須聘用一個「交換產權持有人」(EXCHANGE ACCOMODATION TITLEHOLDER 或簡稱為"EAT")

QEAA 是什麼安排?

要符合QEAA安排的需要,必須按以下做法﹕

  1. 該物業要用「交換產權持有人」(“EAT")名義擁有。2. 納稅人需要有真正的交換意圖。3. 納稅人與EAT在EAT擁有產權五天內,被此定立書面QEAA文件協議。4. 交換出去的物業必須在四十五天內被指定。

    5. 整個交換必須在EAT擁有產權後一百八十天內完成。

由於倒轉交換相當復雜,請務必與專業人事商議。

進行1031交換之後如何報稅?

雖然1031交換為業主拖延資金增值稅(CAPITAL GAIN TAX),但在開始進行1031交換的報稅年度,亦即是原來物業完成交換的那年,用8824報稅表格申報。假如在報稅限期(四月十五日)之前,仍未能完成新物業交換,便應該使用4868報稅表申請延期)請參考上面「45/180天條例」一段)。

除了8814表格外, 亦有可能要填4797 表格和SCHEDULE D。請與閣下會計師商議。

 

Second Home 作1031交換特別稅例

Revenue Procedure No. 2008-16 (Rev. Proc. 2008-16)

Internal Revenue Service (IRS)

Revenue Procedure (Rev. Proc.)

Released: February 15, 2008

Published: March 10, 2008

Safe Harbor for Like-Kind Exchange of Dwelling Unit

SECTION 1. PURPOSE

This revenue procedure provides a safe harbor under which the Internal Revenue Service (the “Service”) will not challenge whether a dwelling unit qualifies as property held for productive use in a trade or business or for investment for purposes of Section 1031 of the Internal Revenue Code.

SECTION 2. BACKGROUND

.01 Section 1031(a) provides that no gain or loss is recognized on the exchange of property held for productive use in a trade or business or for investment (relinquished property) if the property is exchanged solely for property of like kind that is to be held either for productive use in a trade or business or for investment (replacement property). Under Section 1.1031(a)-(1)(a)(1) of the Income Tax Regulations, property held for productive use in a trade or business may be exchanged for property held for investment, and property held for investment may be exchanged for property held for productive use in a trade or business.

.02 Rev. Rul. 59-229, 1959-2 C.B. 180, concludes that gain or loss from an exchange of personal residences may not be deferred under Section 1031 because the residences are not property held for productive use in a trade or business or for investment.

.03 Section 2.05 of Rev. Proc. 2005-14, 2005-1 C.B. 528, states that Section 1031 does not apply to property that is used solely as a personal residence.

.04 In Moore v. Commissioner, T.C. Memo. 2007-134, the taxpayers exchanged one lakeside vacation home for another. Neither home was ever rented. Both were used by the taxpayers only for personal purposes. The taxpayers claimed that the exchange of the homes was a like-kind exchange under Section 1031 because the properties were expected to appreciate in value and thus were held for investment. The Tax Court held, however, that the properties were held for personal use and that the “mere hope or expectation that property may be sold at a gain cannot establish an investment intent if the taxpayer uses the property as a residence.”

.05 In Starker v. United States, 602 F.2d 1341, 1350 (9th Cir. 1979), the Ninth Circuit held that a personal residence of a taxpayer was not eligible for exchange under Section 1031, explaining that “[it] has long been the rule that use of property solely as a personal residence is antithetical to its being held for investment.”

.06 The Service recognizes that many taxpayers hold dwelling units primarily for the production of current rental income, but also use the properties occasionally for personal purposes. In the interest of sound tax administration, this revenue procedure provides taxpayers with a safe harbor under which a dwelling unit will qualify as property held for productive use in a trade or business or for investment under Section 1031 even though a taxpayer occasionally uses the dwelling unit for personal purposes.

SECTION 3. SCOPE

.01 In general.  This revenue procedure applies to a dwelling unit, as defined in section 3.02 of this revenue procedure, that meets the qualifying use standards in section 4.02 of this revenue procedure.

.02 Dwelling unit. For purposes of this revenue procedure, a dwelling unit is real property improved with a house, apartment, condominium, or similar improvement that provides basic living accommodations including sleeping space, bathroom and cooking facilities.

SECTION 4 . APPLICATION

.01 In general. The Service will not challenge whether a dwelling unit as defined in section 3.02 of this revenue procedure qualifies under Section 1031 as property held for productive use in a trade or business or for investment if the qualifying use standards in section 4.02 of this revenue procedure are met for the dwelling unit.

.02 Qualifying use standards.

(1) Relinquished property. A dwelling unit that a taxpayer intends to be relinquished property in a Section 1031 exchange qualifies as property held for productive use in a trade or business or for investment if:

(a) The dwelling unit is owned by the taxpayer for at least 24 months immediately before the exchange (the “qualifying use period”); and

(b) Within the qualifying use period, in each of the two 12-month periods immediately preceding the exchange,

(i) The taxpayer rents the dwelling unit to another person or persons at a fair rental for 14 days or more, and

(ii) The period of the taxpayer’s personal use of the dwelling unit does not exceed the greater of 14 days or 10 percent of the number of days during the 12-month period that the dwelling unit is rented at a fair rental.

For this purpose, the first 12-month period immediately preceding the exchange ends on the day before the exchange takes place (and begins 12 months prior to that day) and the second 12-month period ends on the day before the first 12-month period begins (and begins 12 months prior to that day).

(2) Replacement property. A dwelling unit that a taxpayer intends to be replacement property in a Section 1031 exchange qualifies as property held for productive use in a trade or business or for investment if:

(a) The dwelling unit is owned by the taxpayer for at least 24 months immediately after the exchange (the “qualifying use period”); and

(b) Within the qualifying use period, in each of the two 12-month periods immediately after the exchange,

(i) The taxpayer rents the dwelling unit to another person or persons at a fair rental for 14 days or more, and

(ii) The period of the taxpayer’s personal use of the dwelling unit does not exceed the greater of 14 days or 10 percent of the number of days during the 12-month period that the dwelling unit is rented at a fair rental.

For this purpose, the first 12-month period immediately after the exchange begins on the day after the exchange takes place and the second 12-month period begins on the day after the first 12-month period ends.

.03 Personal use. For purposes of this revenue procedure, personal use of a dwelling unit occurs on any day on which a taxpayer is deemed to have used the dwelling unit for personal purposes under Section 280A(d)(2) (taking into account Section 280A(d)(3) but not Section 280A(d)(4)).

.04 Fair rental. For purposes of this revenue procedure, whether a dwelling unit is rented at a fair rental is determined based on all of the facts and circumstances that exist when the rental agreement is entered into. All rights and obligations of the parties to the rental agreement are taken into account.

.05 Special rule for replacement property. If a taxpayer files a federal income tax return and reports a transaction as an exchange under Section 1031, based on the expectation that a dwelling unit will meet the qualifying use standards in section 4.02(2) of this revenue procedure for replacement property, and subsequently determines that the dwelling unit does not meet the qualifying use standards, the taxpayer, if necessary, should file an amended return and not report the transaction as an exchange under Section 1031.

.06 Limited application of safe harbor. The safe harbor provided in this revenue procedure applies only to the determination of whether a dwelling unit qualifies as property held for productive use in a trade or business or for investment under Section 1031. A taxpayer utilizing the safe harbor in this revenue procedure also must satisfy all other requirements for a like-kind exchange under Section 1031 and the regulations thereunder.

SECTION 5 . EFFECTIVE DATE

This revenue procedure is effective for exchanges of dwelling units occurring on or after March 10, 2008. No inference is intended with respect to the federal income tax treatment of exchanges of dwelling units occurring prior to the effective date of this revenue procedure.

SECTION 6 . DRAFTING INFORMATION

The principal author of this revenue procedure is J. Peter Baumgarten of the Office of Associate Chief Counsel (Income Tax & Accounting). For further information regarding this revenue procedure contact Mr. Baumgarten at (202) 622-4920 (not a toll free call).

The 9 Steps of a Typical Reverse 1031 Exchange Transaction

In total, there are nine steps that make up a reverse 1031 exchange. Viewing these nine steps will give you a good sense of the effort, energy, and resources that are involved in a basic reverse 1031 exchange.

  1. The first step of your reverse exchange is to develop a contract to acquire a suitable replacement property and arrange financing. Financing arrangements for reverse exchanged are fairly flexible: You can advance funds or choose third-party financing or seller financing.
  1. You then enter into a written agreement—a qualified exchange accommodation agreement (QEAA)—with your exchange accommodation titleholder (EAT) before your titleholder acquires qualified indicia of ownership. This written agreement may contain different provisions depending on which type of financing you arrange and also exactly how your EAT intends to hold the parked property.
  1. The third step is for your EAT to acquire title to the replacement property. This can only occur after a financing arrangement has been obtained by you. In many cases, your EAT will acquire title through a single purpose entity (SPE). This SPE is designed to minimize risk and guarantee that the assets involved will not be commingled with other assets of the EAT.
  1. You formally identify the relinquished property in either the QEAA or in a separate notice. The property (or properties) must be identified within 45 days of your EAT obtaining title to the parked property.
  1. In the fifth step, your EAT may lease the parked property to you provided that the lease period doesn’t exceed the safe harbor parking period. The lease will allow you to take control of the parked property in advance.
  1. Identify a buyer for the relinquished property and execute a formal sales contract with this buyer.
  1. You enter into a new agreement with a qualified intermediary (QI). The QI will acquire the right to transfer the title of the relinquished property to the new buyer. Also, the QI will obtain the right to gain title to the parked property.
  1. Your QI will require that you convey the relinquished property to the buyer through a deed. The buyer will then transfer the exchange funds directly to the QI. Subsequently, the QI will use these funds to acquire the parked property from the EAT. At this time, your EAT will identify any closing costs or other liabilities that need to be satisfied immediately and will use a portion of the exchange funds to cover these expenses.
  1. In the final step, the EAT deeds the parked property directly to you. Your QI will oversee this part of the transaction. Once you’ve received your deed, the 1031 exchange is finished.