Section 1031 for Real Estate Professionals by John Hamrick

Flawless Section 1031 Exchanges for Over 27 Years

Section 1031

For Real Estate Professionals

3 Hour Elective Course Approved by: The New Hampshire, Vermont & Maine Real Estate Commissions

Edmund & Wheeler, Inc. QI 567 Cottage Street Littleton, NH 0561 603-444-0020 www.section1031.com exchange@section1031.com

It is estimated that 20-25% of the nearly $200B in annual real estate transactions could benefit from a Section 1031 Exchange, and that only 3% take advantage of this powerful tool. Edmund & Wheeler, as a Qualified Intermediary (QI), has been facilitating Section 1031 Exchanges for over 27 years. We have developed “The Power of Section 1031” to provide a solid understanding of Section 1031 basics and the strategic ways in which Section 1031 can be utilized and to assist real estate professionals in recognizing opportunities for their clients.

© 2008 Edmund & Wheeler, Inc. All rights reserved. The enclosed materials and hypothetical examples are provided for educational purposes only and do not constitute tax, accounting, legal or investment advice.

Welcome To Section 1031 for Real Estate Professionals. This workbook has been designed to assist you during the course, and to provide a reference tool for you in the future. The session is broken down into three sections as described below. Web references have been made throughout the document so that you can do further topical research as required. Web references are indicated with a grey arrow. www.section1031.com If you have follow-on questions or concerns after you complete this course, Edmund & Wheeler is always available by email at exchange@section1031.com, by phone at 603-444-0020, or on the Web at www.section11031.com. Our practice provides real estate professionals with Section 1031 consulting at no charge!

Section

1 Introduction & 1031 Basics

Section

2 Case Studies & Real-life Examples

Section

3 Alternate Exchange Opportunities

Section 1 provides you with an outline of this course, an introduction to the Section 1031 Exchange and the essential elements required for successful exchanges. This section lasts approximately 1 hour and begins on Page 3.

Section 2 contains case studies of the various types of Exchanges as well as real‐life examples of actual transactions that will assist you in developing your own Section 1031 strategies. This section lasts approximately 1 hour and begins on Page 20.

Section 3 outlines the viable alternatives for Exchanges that can be used for diversification, relocation or the desire of a client wishing to exit from the real estate investment class. This section lasts approximately 1 hour and begins on Page 38.

1 Page Course Summary – “Must Have Section 1031 Concepts”

Summary

Section 1031 Glossary

Commonly used phrases and Section 1031 definitions. Begins on Page 55

© 2008, 2009 Edmund & Wheeler, Inc. All rights reserved. The enclosed materials and hypothetical examples are provided for educational purposes only and do not constitute tax, accounting, legal or investment advice.

Section

1 Introduction & 1031 Basics

Contents Introduction.................................................................................................................................... 4 About Edmund & Wheeler, Inc. ..................................................................................................... 5 Course Outline .............................................................................................................................. 2 Primary Objectives of This Course................................................................................................ 6 What Is A Section 1031 Exchange................................................................................................ 7 The Five Critical Elements of an Exchange .................................................................................. 7 The Regulation .............................................................................................................................. 7 An Exchange at A glance .............................................................................................................. 8 Section 1031 (a)(1) IRS Code ....................................................................................................... 8 What Are the Benefits of an Exchange? ....................................................................................... 12 The Essential Elements ................................................................................................................ 12 Replacement Property Rules ........................................................................................................ 13 Real Property (What is Like Kind?) ............................................................................................... 14 Personal Property.......................................................................................................................... 15 Timing Is Everything ...................................................................................................................... 16 Can Anyone Handle an Exchange? .............................................................................................. 16 Who Qualifies for an Exchange?................................................................................................... 16 The Qualification Tool ................................................................................................................... 17 The Five Most Common Section 1031 Misconceptions ................................................................ 19

ÂŠ 2008, 2009 Edmund & Wheeler, Inc. All rights reserved. The enclosed materials and hypothetical examples are provided for educational purposes only and do not constitute tax, accounting, legal or investment advice.

Too many professionals get caught up in the belief that Section 1031 is only about deferring capital gains. While it is one of the remaining tax deferral tools available, it’s actually a LOT about leverage. Clients using what they would have paid immediately in capital gains taxes to improve the quality and value of their holdings and plan for their financial future; is REALLY what Section 1031 is all about. Section 1031 has been a part of the Internal Revenue Service Code since 1921! Look at it as a gift from Uncle Sam, but don’t tell anyone.

Ok, let’s do the math. These numbers suggest that investors paid the Government over $10B in capital gains taxes when in fact, they could have used this money in their own portfolios, interest free, for as long as they would like. Wait a minute… Why is this so? We have found that many professionals that we deal with on a day‐to‐day basis are unclear of the many strategic uses of Section 1031. Unfortunately, there are still many that don’t even know of its existence, and fail to recognize even its most basic uses. Don’t let your clients find out you didn’t tell them they could have used this powerful tool.

As real estate professionals, you have a certain responsibility to your clients regarding the tax ramifications of their transactions. Holders of investment real estate should be made aware of the tools that are available to help them strengthen their real estate portfolios. Section 1031 is one of the more powerful tools.

We hear over and over again from real estate professionals how thankful their clients were that they understood Section 1031 and helped them to explore the possibilities. Indeed, many of our real estate partners have saved their clients hundreds of thousands of dollars in capital gain expense, giving them more money to invest, while earning multiple commissions in the process!

In 1981, Mr. George Foss, III, our founder and co‐principal was a prominent real estate broker in Northern New Hampshire. After reading about the concept of a Section 1031 Exchange, he was immediately intrigued, and saw the opportunity to add an interesting twist to his real estate deals by helping clients to take advantage of this virtually unknown gift from Uncle Sam. 27 years and thousands of successful exchanges later, George Edmund & Wheeler remains the foremost authorities on Section 1031 in the New England states, and have completed exchanges with clients in 48 of 50 states. The firm has provided Section 1031 education and consulting to hundreds of New England real estate professionals and has helped them to save their clients over $100 Million in capital gains taxes.

George Foss, QI

John Hamrick, Instructor

This course has been designed to assist you in becoming proficient in the basics of a Section 1031 Exchange. An Exchange can be a very complex and time consuming endeavor. Your QI will understand all of the mechanics and the myriad of rules and regulations surrounding an Exchange. Our goal for this session is to provide you the knowledge and tools you will require to assist your clients in recognizing the tremendous opportunities that Section 1031 provides. Section 1031 is not just a tax deferral vehicle. It is a powerful part of your client’s overall investment strategy, their exit strategy from a business, and an integral part of their estate planning. Bottom line is that the taxes that are deferred can be used to leverage larger investments, diversify portfolios and substantially increase wealth over a period of time. Don’t worry, we won’t grade you. We want to take an inventory of what our students know about Section 1031 prior to the course. When the course is over, we will re‐take the quiz, and you will see how far you’ve come in just a short time. Good Luck!

Section 1031 fundamentally is about the relocation and reallocation of your client’s real estate assets, all without paying capital gains taxes. Relocation could be across the street, or across the nation. Clients can relocate their holdings to several markets, creating geographical diversity. They can also reallocate holdings by combining multiple holdings into one more valuable property. They can sell apartment buildings and Exchange for single‐ family housing units, or they can opt for one of the passive real estate investments available to them and leave the day‐to‐day management of real estate to a professional property management team. Section 1031 exchanges are reported on your tax return by using Schedule 8824. It is important that all of the documentation leading up to and throughout the exchange is explicit that an exchange is taking place and not an ordinary sale. The taxpayer cannot touch the funds or it will trigger the tax. The Relinquished Property and the Replacement property must be investment/business use property in the taxpayer’s hands. All exchanges must be concluded with 180 days. An exchange is handled in the same manner as a regular sale with the exception that a third party Qualified Intermediary (QI) provides the documentation and handles all funds.

www.section1031.com/PDFs/New PDFs/IRC1031.pdf

Section 1031 (a)(1)

(a) Nonrecognition of gain or loss from exchanges solely in kind (1) In general No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment. (2) Exception This subsection shall not apply to any exchange of— (A) stock in trade or other property held primarily for sale, (B) stocks, bonds, or notes, (C) other securities or evidences of indebtedness or interest, (D) interests in a partnership, (E) certificates of trust or beneficial interests, or (F) choses in action. For purposes of this section, an interest in a partnership which has in effect a valid election under

section 761 (a) to be excluded from the application of all of subchapter K shall be treated as an interest in each of the assets of such partnership and not as an interest in a partnership.

(3) Requirement that property be identified and that exchange be completed not more than 180 days after transfer of exchanged property For purposes of this subsection, any property received by the taxpayer shall be treated as property which is not like-kind property if— (A) such property is not identified as property to be received in the exchange on or before the day which is 45 days after the date on which the taxpayer transfers the property relinquished in the exchange, or (B) such property is received after the earlier of— (i) the day which is 180 days after the date on which the taxpayer transfers the property relinquished in the exchange, or (ii) the due date (determined with regard to extension) for the transferor’s return of the tax imposed by this chapter for the taxable year in which the transfer of the relinquished property occurs. (b) Gain from exchanges not solely in kind If an exchange would be within the provisions of subsection (a), of section 1035(a), of section 1036(a), or of section 1037(a), if it were not for the fact that the property received in exchange consists not only of property permitted by such provisions to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property. (c) Loss from exchanges not solely in kind If an exchange would be within the provisions of subsection (a), of section 1035(a), of section 1036(a), or of section 1037(a), if it were not for the fact that the property received in exchange consists not only of property permitted by such provisions to be received without the recognition of gain or loss, but also of other property or money, then no loss from the exchange shall be recognized. (d) Basis If property was acquired on an exchange described in this section, section 1035 (a), section 1036(a), or section 1037 (a), then the basis shall be the same as that of the property exchanged, decreased in the amount of any money received by the taxpayer and increased in the amount of gain or decreased in the amount of loss to the taxpayer that was recognized on such exchange. If the property so acquired consisted in part of the type of property permitted by this section, section 1035 (a), section 1036(a), or section 1037 (a), to be received without the recognition of gain or loss, and in part of other property, the basis provided in this subsection shall be allocated between the properties (other than money) received, and for the purpose of the allocation there shall be assigned to such other property an amount equivalent to its fair market value at the date of the exchange. For purposes of this section, section 1035 (a), and section 1036 (a), where as part of the consideration to the taxpayer another party to the exchange assumed (as determined under section 357 (d)) a liability of the taxpayer, such assumption shall be considered as money received by the taxpayer on the exchange. (e) Exchanges of livestock of different sexes For purposes of this section, livestock of different sexes are not property of a like kind.

(f) Special rules for exchanges between related persons (1) In general If— (A) a taxpayer exchanges property with a related person, (B) there is nonrecognition of gain or loss to the taxpayer under this section with respect to the exchange of such property (determined without regard to this subsection), and (C) before the date 2 years after the date of the last transfer which was part of such exchange— (i) the related person disposes of such property, or (ii) the taxpayer disposes of the property received in the exchange from the related person which was of like kind to the property transferred by the taxpayer, there shall be no nonrecognition of gain or loss under this section to the taxpayer with respect to such exchange; except that any gain or loss recognized by the taxpayer by reason of this subsection shall be taken into account as of the date on which the disposition referred to in subparagraph (C) occurs. (2) Certain dispositions not taken into account For purposes of paragraph (1)(C), there shall not be taken into account any disposition— (A) after the earlier of the death of the taxpayer or the death of the related person, (B) in a compulsory or involuntary conversion (within the meaning of section 1033) if the exchange occurred before the threat or imminence of such conversion, or (C) with respect to which it is established to the satisfaction of the Secretary that neither the exchange nor such disposition had as one of its principal purposes the avoidance of Federal income tax. (3) Related person For purposes of this subsection, the term “related person” means any person bearing a relationship to the taxpayer described in section 267 (b) or 707 (b)(1). (4) Treatment of certain transactions This section shall not apply to any exchange which is part of a transaction (or series of transactions) structured to avoid the purposes of this subsection. (g) Special rule where substantial diminution of risk (1) In general If paragraph (2) applies to any property for any period, the running of the period set forth in subsection (f)(1)(C) with respect to such property shall be suspended during such period. (2) Property to which subsection applies This paragraph shall apply to any property for any period during which the holder’s risk of loss with respect to the property is substantially diminished by—

(A) the holding of a put with respect to such property, (B) the holding by another person of a right to acquire such property, or (C) a short sale or any other transaction. (h) Special rules for foreign real and personal property For purposes of this section— (1) Real property Real property located in the United States and real property located outside the United States are not property of a like kind. (2) Personal property (A) In general Personal property used predominantly within the United States and personal property used predominantly outside the United States are not property of a like kind. (B) Predominant use Except as provided in subparagraphs (C) and (D), the predominant use of any property shall be determined based on— (i) in the case of the property relinquished in the exchange, the 2-year period ending on the date of such relinquishment, and (ii) in the case of the property acquired in the exchange, the 2-year period beginning on the date of such acquisition. (C) Property held for less than 2 years Except in the case of an exchange which is part of a transaction (or series of transactions) structured to avoid the purposes of this subsection— (i) only the periods the property was held by the person relinquishing the property (or any related person) shall be taken into account under subparagraph (B)(i), and (ii) only the periods the property was held by the person acquiring the property (or any related person) shall be taken into account under subparagraph (B)(ii). (D) Special rule for certain property Property described in any subparagraph of section 168 (g)(4) shall be treated as used predominantly in the United States.

It’s important to understand the difference between investment property and property “held for sale.” Property that is held for sale is technically inventory in the hands of the taxpayer and is therefore not eligible for Section 1031 treatment.

Section 1031 Exchanges can be used as a strategy to achieve tax deferral while changing the location and the type of property held. As a tax‐planning tool, it will achieve greater net equity over time and increased cash flow.

The Exchange Agreement created by the Qualified Intermediary will give the QI legal standing by way of assignment in both the old property and the new property. From the Exchangors perspective, a sale does not occur, but rather an exchange of properties. Both must be used by the taxpayer for investment or productive use and remember that all real property is like‐kind to all other real property.

There are three separate rules for identifying Replacement property. The most common rule is termed the “3 Property Rule.” It doesn’t matter how many properties were sold in an exchange, it is the value that is being matched. Identifying three properties within the 45‐day deadline will be challenging. Even if you eventually only select one property, it’s a good policy to identify more than one so a backup property is available if the first choice becomes unattainable. The 200% Rule is available to taxpayers who want to identify and/or acquire more than three properties. The limitation in using the 200% Rule is that the total value of what is identified cannot exceed twice the value (or 200%) of the Relinquished Property. This rule works well for larger dollar transactions when the taxpayer wants to diversify the investment into multiple properties. The 95% Rule is the most perilous choice. It will allow the taxpayer to ignore the value and the number of choices with the requirement that once the properties are identified, the taxpayer MUST acquire 95% of them. In nearly 30 years of practice this rule has been used by a client in only one instance.

The point to remember is that it does not matter the type of real estate that the taxpayer owns, it is how the property is used in their hands. It must be for investment, commercial or business use. A single‐family residence is like kind to every other kind of real property as long as the single‐family residence is NOT personal use property.

These are ALL Like Kind!

When Section 1031 was first codified in 1921, it was for the benefit of farmers who objected to paying capital gains tax on their farm property, both real and personal. Certain items of personal property are exchangeable as long as they fall into the same asset class or product code. All aircraft is like‐kind to all other aircraft for instance, but is not like kind to other items of machinery. The North American Industry Classification System for Sectors 31‐33 is the best sources for determining like kind for personal property. www.census.gov/naics (for a complete description of the allowable categories)

The Exchange will begin on the day the deed is conveyed to the purchaser. The 45 day and 180 day clock will begin. Contracts for sale and purchase do not trigger the beginning on an exchange, it always happens on the day of the first leg of the transaction. This is also true for reverse exchanges. Only Presidentially declared disasters would provide for extension of these time sensitive dates.

The first step is to engage the Qualified Intermediary to create a written Exchange Agreement. The QI is required to have standing in the exchange and this will be accomplished with an assignment of the contracts. Specific guidance will be provided to the Settlement Agent and the funds will be directed to the QI for the acquisition of the new property. Most importantly, the QI will provide guidance to the taxpayer to avoid the pitfalls. Transactions with related parties are prohibited unless certain rules are followed. Exchanges can be conducted regardless of whether the taxpayer is an individual or some form of other entity. It is important to remember that the same taxpayer must sell and then buy. The IRS is tracking the taxpayer identification number. Single member LLC’s and revocable trusts will be disregarded for tax purposes.

DOES YOUR SITUATION QUALIFY FOR A SECTION 1031 EXCHANGE This tool has been developed to help you quickly identify Section 1031 opportunities?

www.section1031.com/PDFs/New PDFs/WhatQualifies.htm

Plans for the Money The greatest benefit from capital gains deferral will be obtained by reinvesting all of the cash from the sale of your property. It is possible to extract cash at closing; however, the amount you take will be subject to tax.

Amount Invested How did you acquire the property and how long have you owned it? Did you purchase it, did you exchange into it, was it given to you or did you inherit it? The answers to these and other questions will determine whether you have a low or high cost basis, and what your exposure is to Capital Gains Taxe. If the gain exceeds $20,000 then an Exchange should be considered.

Mortgage Balance The outstanding mortgage debt is paid off at closing in the same manner as any other closing; and debt paid off must be replaced when the new property is acquired or new cash added to offset any difference. Any debt relief not offset by new cash will result in taxable boot.

On Last Two Tax Returns or Vacant Land Your tax return provides the IRS with an audit trail of your past activity. Your rental property must have appeared on Schedule “E” of your return (or the corporate equivalent) if you want to portray your property as held for investment or for use in your Trade or Business. The only exception will be vacant land.

How Long Owned Dealers are not permitted to use Section 1031; generally their assets are “held for sale”, not “held for investment”. In order for a property to be considered for long-term capital gain treatment, it must have been owned by you for at least one year.

Type of Replacement Property Section 1031 requires that the property be “like-kind”; all real property is like-kind to all other real property. The Like-kind test is more stringent for personal property.

Choices of Replacement Property Under the simple rules, you may select up to three potential new properties and you can buy any one, two or all three of them. More choices are available, however, the dollar value of the choices is capped at 200% of the value of the old property.

Can Meet 45 Day Requirement After the closing of the old or Relinquished Property, you will have 45 days to make your formal identification of Replacement Property choices. No substitutions are permitted after the 45th day.

Can Meet 180 Day Requirement After the closing of the old or Relinquished Property, you will have 180 days to acquire the new or Replacement Property. Exchanges must be accounted for within the same tax year; often it is necessary to extend the due date of the tax return to accomplish this task and to get the full benefit of 180 days for a year-end exchange.

Third Party Handling of Money Receipt of funds by the taxpayer at closing is not permitted in a Section 1031 Exchange. A Qualified Intermediary must be designated to facilitate this process so that the taxpayer never has constructive receipt of the funds. Relatives and attorneys or accountants that have represented the taxpayer in the last two years are prohibited from acting as the Qualified Intermediary.

Have qualification questions? Edmund & Wheeler, Inc. has provided flawless Section 1031 exchanges for over 27 years. In fact, Exchanges are our only business. Contact our offices via phone or email if you have any questions regarding your specific situation.

www.section1031.com/PDFs/New PDFs/WhatQualifies.htm

The Five Most Common Section 1031 Misconceptions

Well before delayed exchanges were codified (by IRS) in 1991, all simultaneous exchange transactions of Real Estate required the actual swapping of deeds plus the simultaneous closing among all parties to a 1031 exchange. In most cases these types of exchanges were comprised of many of exchanging parties, as well as numerous exchange real estate properties. Now today, there's no such requirement to swap your own property with someone else's property, in order to complete an IRS approved exchange. The rules have been refined and ratified to the point that the current process is much more indicative of your qualifying intent, rather than the logistics of the Real Estate property closings There was a time when all types of exchanges had to be closed on a simultaneous (same day) basis, now they (1031) are rarely completed in this type of format. As a matter of fact, a majority of the exchanges executed are closed now as delayed exchanges. Don’t make this mistake. There is a common misconception that “Like‐Kind” is literal. There are currently 2 types of properties that qualify as a 'like‐kind': Property held for investment and/or Property held for a productive use, as in a trade or business. This statement is a perfect example of another 1031 exchanging myth. Let me repeat, there are no provisions within either the IRS Code or the US Treasury Regulations that can restrict the amount and number of real estate properties that can be involved in an exchange. Thus, in exchanging out of several properties into one replacement property or the vice versa of selling of one property and acquiring several other properties, are perfectly acceptable strategies and uses of a 1031. You can take cash out of a Section 1031 Exchange; however, the cash that you take out will be immediately taxable.

Section

2 Case Studies & Real-life Examples

Contents Hypothetical Example – Pay Taxes/Defer Taxes.......................................................................... 21 Edmund & Wheeler Case Studies................................................................................................. 24 Case Study 1 – Delayed Exchange .............................................................................................. 25 Real-life Example – Trading a Campground for Several Properties ..................................... 26 Real-life Example – 6 Properties for a Dozen Condos ......................................................... 26 Converting Investment Property into Personal Residence ................................................... 27 Case Study 2 – Reverse Exchange .............................................................................................. 28 Real-life Example – Buying a New Property Before the Old Property Sells ......................... 29 Acquire a Rental Property for a Family Member ................................................................... 29 Case Study 3 – Build-to-suit Exchange ........................................................................................ 30 Real-life Example – Commercial Property for Raw Land with Improvements ...................... 31 Case Studay 4 – Delayed Build-to-suit Exchange ........................................................................ 32 Real-life Example – Industry Specific Building on Identified Property .................................. 33 Case Study 5 – Delayed Exchange, Reverse Format .................................................................. 34 Real-life Example – Acquiring Abutting Property to Primary Residence .............................. 35 The Four Simple Qualification Questions...................................................................................... 36

These two Property Owners have identically valued properties with identical tax consequences, however, one chooses to sell and the other chooses to use The Power of Section 1031, and take an interest‐free loan from the Federal and State Government.

These are the assumptions. The Federal Tax is 15% and the State Tax is 5%, but past depreciation these taxpayers have taken will be recaptured at the rate of 25%. However, the second Property Owner has no intention of funding the tax, as a Section 1031 Exchange is planned. Another assumption is that the values of the Replacement Properties grow at a uniform 6% rate per year, without compounding. After 5, 10 and 15 years we will take a look at each situation.

OK, here we go. The two properties both sell for $300,000, but one Property Owner elects to pay the tax ($65,000) while the other elects to accept the interest‐free loan. They both reinvest, but one has $65,000 more than the other, and as a consequence, his investment commands more monthly cash flow. So the effects of the interest‐free loan are immediate: The Property Owner who took the loan earns $325 more per month on his investment than his tax‐paying counterpart.

Now let’s look at the situation 5 years out. Each owner sells his investment, but again Owner #1 pays the tax while Owner #2 elects to take a further advance on the interest‐free loan. Further, since more principal was invested, the value of the 2nd Owner’s investment is worth almost $100,000 more than the 1st Owner’s. Granted this difference is pre‐ tax, but read on.... At 10 years, the pattern repeats: Owner #1 pays taxes again, but Owner #2 accepts a further advance on the interest‐free loan. This equity is worth $145,664 more than Owner #1, and, as a consequence, it commands $728 more income per month

We conclude the example here, but you get the idea: By deferring the tax at the beginning, Owner #2 has made good use of free government money. This investment is now worth $221,044, and consequently commands a monthly income of $3296, more than $1056 more per month than Owner #1's income.

And here is a summary of the wealth building effects. Owner #2's equity is worth more than $211,044 than Owner #1's, and has grown by 119% (instead of 49.3%) thanks to the use of the tax‐free loan. Further, at this point, let’s pretend that Owner #2 takes leave of his senses and decides to pay the tax instead of exchanging again and again.

The total taxes due from Owner #2 at the 15‐year point are $136,810, which leaves this owner $74,234 ahead of Owner #1 on an after‐tax basis. This is the true comparison because, after all, Owner #1 was paying tax all the way through, and Owner #2 was deferring it, by the use of Section 1031.

At the 15th year, Owner #2 has received an additional $92,779 in cash flow over Owner #1. Can any sensible investor afford to ignore these two figures??

Even after the last sale, if Owner #2 decides to get out the game and pay his taxes, he is still is over $160,000 ahead of the game!

Case Studies Over the many years that Edmund & Wheeler has been facilitating Exchanges, we have discovered that exchanges generally can be described in 5 distinct types. The most common type is Case Study 1 – the Delayed Exchange. We will be reviewing each case study, along with some real‐life examples of how these Exchanges work.

Case Study

Exchange Type Delayed Exchange (Existing Property) Direct Format Delayed/Simultaneous Exchange (Existing Property) Reverse Format (Exchange Last) Delayed Build-to-suit Exchange Direct Format

Delayed/Simultaneous Buildto-suit Exchange Reverse Format (Exchange Last)

Delayed Exchange (Existing Property) Reverse Format (Exchange first)

Description

In this format, the client gets the most common type of Section 1031 Exchange.

In this format, property desired by the Exchange client is parked in a Single Purpose Entity (SPE) until the client's current property can be sold.

In this format, the client gets a Section 1031 Exchange and acquires new, improved property, built-to-suit.

In this format, property desired by the client is parked in a Single Purpose Entity (SPE) until the client's current property can be sold. During the parking period, the new property is improved by the SPE to the client's wishes.

In this format, property desired by the client can be purchased immediately by Client, as Client's old (Relinquished) property is parked in a Single Purpose Entity (SPE) until it can be sold to buyer.

www.section1031.com/cases.htm

CASE STUDY 1 ABDC Delayed Exchange (Existing Property) Direct Format

In this format, the Client (A) gets a Section 1031 Exchange between steps 3 and 7 assuming all of the rules have been followed. This is the most common type of exchange.

The Exchange Agreement with Edmund & Wheeler, Inc. which governs the overall transaction. This document MUST be in force before the closing. The Purchase and Sale Agreement to sell the Relinquished Property. This step may take place before Step 1 (the only outof-sequence exception).

The closing of the Relinquished Property; if several are involved, the first in chronological order. In this step, the deed to the property is given to the Buyer. Rather than going to the Exchangor, the Buyer's funds are used to pay all of Exchangor's expenses (including mortgages, if any), with the NET going directly to a money center bank into a separate, interestbearing account established in the Exchangor's name and Social Security number. This is an interactive step encompassing all communications post-closing with the Exchangor and Edmund & Wheeler, Inc. Included are the 45-day Identification Letter, instructions on how much of the account to be expended on particular properties, and final approval to close on the final choice(s). These are the precise instructions to Exchangor's attorney, bank or Title Company for the closing of the Replacement Property, and the wire transfer of approved funding. This is the Exchangor's receipt of the direct deed from the owner of the Replacement Property (C); the Exchangor achieves a Section 1031 Exchange between Steps 3 and 7, where in Step 3 a deed is given and in Step 7 a deed is received, and in between the Exchangor had no control (or Constructive Receipt) of funds.

This Exchangor sold one large lakefront property and proceeded to use the next 45 days driving up and down the East Coast selecting Replacement Properties. He was in the enviable position of being able to identify more than three Replacement Properties (the simple rule). He used the 200% rule (to identify as many properties as he wanted as long as the total value of the properties identified did not exceed twice the value of the Relinquished Property). In the end, he acquired sixteen new properties from Maine to Florida, many of them single family (rental) residences, including two new campgrounds. This Exchange allowed him to diversify his portfolio, generate significant cash flow from his new properties, and pay no capital gains tax. As they say in the business "one happy camper!" If he determines that one or more of his selections doesn’t satisfy his investment objectives, then after a year or two, he can exchange again.

We are currently working with a client to acquire a significant piece of commercial real estate in New England. The client is in the process of selling six separate pieces of property in order to aggregate sufficient funds to make the new Replacement Property purchase. The client has been extremely careful (with our guidance) to time his sales and the new purchase all within a 180 day time frame. This is key to the success of the Exchange due to the fact that he will acquire not just one piece of property, but rather over a dozen condominiums. You will recall that you have two basic rules when it comes to identifying your Replacement property choices, the Three‐Property Rule and the 200% Rule. This Exchange is an example of yet a third method of identifying Replacement property. It allows the client to acquire an unlimited number of properties, without regard to value or number as long as he acquires 95% (FMV) of what he identified. This can be a little nerve‐racking for the investor and it pays to have a back‐up plan.

Our client exchanged out of a three unit building that had been held for many years. In preparation for retirement, the client acquired a Florida rental property. After renting the Florida property for two years, our client will convert the use from rental to personal and move into the property as a primary residence. There isn’t any prohibition against converting business/investment property to personal use. Be aware that upon the sale of the property, the client will NOT be entitled to the full Section 121, personal residence exclusion of $250,000/$500,000. Effective January 1, 2009 the number of years of non‐qualified residential use is divided by the total number of years owned to produce a pro‐rated exclusion. For example, if you own a property for 10 years and you rented it for the first two years of ownership and later moved into it and made it your primary residence, then you would only be eligible to exclude 80% of the sale, meaning you would owe gains on 20% of the

CASE STUDY 2

ACBD-Delayed/Simultaneous Exchange (Existing Property) Reverse Format - Exchange Last In this format, property (C) desired by the client (A) is parked in a Single Purpose Entity (SPE) until client's current property (A) can be sold. Section 1031 Exchange occurs between steps 7 and 11.

The Exchange Agreement with Edmund & Wheeler, Inc. which governs the overall transaction. This document MUST be in force before the closing. Since the Replacement Property will be purchased (and Parked) before the sale of the Relinquished Property, a source of funds for the purchase must be arranged. This can be the Exchangor, or their bank. If a bank, the Exchangor will be expected to provide a guarantee.

This is the loan to the Single Purpose Entity (which the IRS has renamed an Exchange Accommodation Titleholder (EAT)) that will buy the Replacement Property from its owner (C) and hold it until the Relinquished Property (A) can be sold to the Buyer (B). This is the actual purchase of the Replacement Property from its owner (C). At this step, the Entity (and not the Exchangor) becomes the legal owner of the Relinquished Property. The 180-day Exchange Period commences. The Relinquished Property goes under Agreement of Sale to Buyer (B).

As Edmund & Wheeler, Inc. is the signer on the Qualified Escrow Account, it causes the balance to be paid to the EAT in exchange for its deed for the Replacement Property executed in favor of the Exchangor. Before the deed can be issued, however, the EAT must pay off (or pay down to the extent of available cash) the loan made to it at Step 3, above. This is the Exchangor's receipt of the direct deed from the EAT as owner of the Replacement Property; provided the deed is delivered to the Exchangor on or before the 180th day. The Exchangor achieves a Section 1031 Exchange between Steps 7 and 11, where at Step 7 a deed is given and at Step 11 a deed is received, and in between the Exchangor had no control (or Constructive Receipt) of funds.

The Exchangor gives Buyer (B) a deed, and the transaction closes; this step must occur before the 180th day, with enough margin to complete Steps 8-11. Rather than going to the Exchangor, the Buyer's funds are used to pay all of Exchangor's expenses (including mortgages, if any), with the NET going directly to a money center bank into a separate Qualified Escrow Account established in the Exchangor's name and Social Security number.

George’s favorite Exchange was an "acquire first, reverse exchange". Sounds complicated, but it’s not. Our client had negotiated the purchase of a significant new property but had been unable to sell a piece of existing property in time to do the deal. Rather than jeopardize the purchase, we created a single purpose entity (SPE), in this case, a Massachusetts trust, to acquire the new (parked) property. Edmund & Wheeler, Inc. was engaged to create the new entity, hold the property until the old property was sold and the proceeds are available to acquire the "parked" property. The Exchangor funded the purchase with his own and other bank resources. Once the old property was sold, the new property was deeded to the Exchangor. Since it is not permissible to own the old and new property at the same time, this strategy accomplished the Exchangor’s desired outcomes, again without capital gains tax.

This is a case where you can benefit your own family without paying capital gains tax. Our client sold a multi‐family rental property that had been owned for many years and rented to college students. The cash flow was OK but there was deferred maintenance that was starting to affect the market price of the property. Our client negotiated a sale on the multi‐family property and engaged us to handle the transaction as a Section 1031 Exchange. The client’s daughter had moved to a suburb of Chicago and wanted to acquire a

property that would be a safe secure primary residence and provide her mom with a nice place to visit the grandchildren. A property was identified and the exchange funds were used to acquire the new suburb property. As long as the property remains as rental property in the hands of the client and fair market rent is charged, then this strategy is perfectly acceptable. The property can be gifted off in increments of $12,000 per person, per year.

CASE STUDY 3

ACBD-Delayed, Build-to-Suit (or Improvement) Exchange Direct Format In this format, client (A) gets a Section 1031 Exchange between steps 3 and 12 and acquires new, improved property. All rules MUST be followed.

Agreement with Edmund & The Exchange Wheeler, Inc. which governs the overall transaction. This document MUST be in force before the closing. The Purchase and Sale Agreement to sell the Relinquished Property. This step may take place before Step 1 (the only out-ofsequence exception).

The closing of the Relinquished Property; if several are involved, the first in chronological order. In this step, the deed to the property is given to the Buyer. This step starts the 45-day Identification Period and the 180-day Exchange Period. Rather than going to the Exchangor, the Buyer's funds are used to pay all of Exchangor's expenses (including mortgages, if any), with the NET going directly to a money center bank into a separate, interestbearing Qualified Escrow Account established in the Exchangor's name and Social Security number. The Exchangor has identified property C (property needing improvements) as the Replacement Property; at this Step, Edmund & Wheeler, Inc. causes the necessary purchase price for this property to be advanced to the Single Purpose Entity (which IRS has renamed an Exchange Accommodation Titleholder (EAT)) which has been formed to own and improve the identified Replacement Property.

The vendors begin work, and soon enough, bills begin to arrive, addressed to the EAT, the legal owner of the property. All invoices are presented to the Exchangor for approval for payment from the Account. Upon such approval, further advances are made by the QI to the EAT to cover each payment. The vendors are timely paid, until funds are exhausted. This is the Exchangor's receipt of the direct deed from the EAT as owner of the Replacement Property; provided the deed is delivered to the Exchangor on or before the 180th day (as adjusted), the Exchangor achieves a Section 1031 Exchange between Steps 3 and 12, where at Step 3 a deed is given and at Step 12 a deed is received, and in between the Exchangor had no control (or Constructive Receipt) of funds.

This is the closing for Property C; this Step is the funding; and

This Step is the legal acquisition. At (or hopefully well before) this time, Exchangor engages Contractors and Materialmen to effectuate the desired improvements. © 2008, 2009 Edmund & Wheeler, Inc. All rights reserved. The enclosed materials and hypothetical examples are provided for educational purposes only and do not constitute tax, accounting, legal or investment advice.

This is a classic "build‐to‐suit" transaction. Our client sold a commercial property and directed the proceeds of the sale by virtue of an Exchange Agreement to us as Qualified Intermediary. We created a single purpose entity to conduct the business, in this case a NH corporation. We then purchased, in the name of the new corporation, a piece of raw land (which had been subdivided and permitted) using the exchange proceeds. The client delivered specific instructions for the type of building to be constructed on the site and directed who the contractor would be to perform the work. We made a series of progress payments based on the work in place and the "ok" to pay by the client. Once all of the sale proceeds of the Relinquished Property were exhausted, the new property was deeded to the client and the corporation was closed and tax return filed on its behalf. The entire process was concluded within 180 days.

CASE STUDY 4

ACBD-Delayed/Simultaneous Build-to-suit Exchange Reverse Format - Exchange Last In this format, property (C) desired by the client (A) is parked and improved in a Single Purpose Entity (SPE) until client's current property (A) can be sold. Section 1031 Exchange takes place between steps 10 and 14.

This is the loan (and Line of Credit) to the Single Purpose Entity (which the IRS has renamed an Exchange Accommodation Titleholder (EAT)) that will buy the Replacement Property from its owner (C) and improve it and hold it until the Relinquished Property (A) can be sold to the Buyer (B). This is the actual purchase of the Replacement Property from its owner (C) by the EAT.

The Exchangor gives Buyer (B) a deed, and the transaction closes; this step must occur before the 180th day, with enough margin to complete Steps 11-14. Rather than going to the Exchangor, the Buyer's funds are used to pay all of Exchangor's expenses (including mortgages, if any), with the NET going directly to a money center bank into a separate Qualified Escrow Account established in the Exchangor's name and Social Security number.

At this step, the EAT (and not the Exchangor) becomes the legal owner of the Relinquished Property. The 180-day Exchange Period commences. At (or hopefully well before) this time, Exchangor engages Contractors and Materialmen to effectuate the desired improvements.

The vendors begin work, and soon enough, bills begin to arrive, addressed to the EAT, the legal owner of the property.

Before the deed can be issued, however, the EAT must pay off (or pay down to the extent of available cash) the loan made to it at Step 3, above.

All invoices are presented to the Exchangor for approval for payment from the Line of Credit.

This is the Exchangor's receipt of the direct deed from the EAT as owner of the Replacement Property; provided the deed is delivered to the Exchangor on or before the 180th day, the Exchangor achieves a Section 1031 Exchange between Steps 10 and 14, where at Step 10 a deed is given and at Step 14 a deed is received, and in between the Exchangor had no control (or Constructive Receipt) of funds.

The vendors are timely paid, until the predetermined match point has been obtained.

Relinquished Property (A) goes under Agreement The of Sale to Buyer (B).

Our client required an industry specific building to be constructed on property that he identified. We created a single purpose entity to acquire the targeted land and then began construction of the facility. The construction was completed at day 135 and the client moved his existing business in to the facility. Once the former building was vacant, it could be shown to prospective buyers and sold before day 180.

CASE STUDY 5

Delayed Exchange (Existing Property) Reverse Format - Exchange First In this format, property (C) desired by the client (A) can be purchased immediately by Client (A), as Client (A)'s old (Relinquished) Property (A) is parked in a Single Purpose Entity (SPE) until it can be sold to buyer (B). Section 1031 Exchange takes place between steps 3 and 6.

The Exchange Agreement with Edmund & Wheeler, Inc. which governs the overall transaction. This document MUST be in force before the closing. In consultation with the QI, the Exchangor determines what the NET proceeds would have been had the Relinquished Property sold that day; this is the cash amount of a loan to be made by the Exchangor to the Special Purpose Entity (Exchange Accommodation Titleholder (EAT)) that will buy the Relinquished Property from the Exchangor (A) and hold it until this property can be sold to the Buyer (B).

In this Step, the Exchangor executes a deed to the Relinquished Property to the EAT. Not shown is a mortgage back to the Exchangor to provide for security. The 180-day Exchange period commences. The exact amount of the loan funds in Step 2 are turned over to Edmund & Wheeler, Inc. as QI. Since the Exchangor has identified Property C as the Replacement Property, the QI is instructed to fund its purchase. This is the Exchangor's receipt of the direct deed from the owner of the Replacement Property (C); the deed is delivered to the Exchangor almost immediately after the Steps above; the Exchangor achieves a Section 1031 Exchange between Steps 3 and 6, where in Step 3 a deed is given and in Step 6 a deed is received, and in between the Exchangor had no control (or Constructive Receipt) of funds. Exchangor's former property (the Relinquished Property) is now legally owned by the EAT, however, the Exchangor is expected to continue the marketing effort and to approve all offers. When Buyer (B) is found, the EAT executes a deed to the Exchangor's Relinquished Property in favor of this person. The Buyer (B) pays the purchase price to the EAT, which uses the funds to:

Payoff the bank (if any); and To repay the initial loan from the Exchangor.

Our client had an opportunity to acquire abutting property to his primary residence. The new property was vacant land but included more than 500 feet of shore front land. The client arranged for a borrowing sufficient to acquire the new property but since he couldn’t own the new property and the old property at the same time, he sold the old property to a single purpose entity for the amount of money that he had just borrowed. The old property deed was placed in the name of the entity. Next, the entity passed the loan funds to Edmund & Wheeler which in turn gave them to the Seller of the shore front land, and this Seller deeded our client the property. Then the client went to work to sell existing property that was held as a rental property by the entity in Florida. Florida sold within 180 days and the Buyer’s funds were passed though the exchange to pay down the debt on the new shore front property.

Now that you understand all of the technical aspects of Section 1031, it’s time to sift all of this information into an easy to understand format to help you identify exchange opportunities.

Since we have learned that only certain property qualifies for exchange treatment, we want to understand if the property has had personal use, been used for qualified purposes and the transaction does not contain items that are not exchangeable.

This will helps us understand the tax basis of the property in the client’s hands. If we discover that the property was acquired via a previous exchange then it will almost certainly need to be exchanged again. The property should have been owned for not less than one year (need long term tax treatment qualification).

Clients often fail to understand that stepped transactions require special care in Section 1031 transactions. The better informed we are at the beginning of the process, the better result at the conclusion of the transaction. Right‐sizing the transaction is important for the desired results.

Understanding the client’s objectives is key to advising them on the correct strategy to undertake. Going even or up in value will avoid taxable “boot” but if the client wants some cash, it is perfectly acceptable; they will put that cash at risk of taxation and not the entire transaction. Helping them select the right identification rule to follow is equally important to the success of the exchange.

Section

3 Alternate Exchange Opportunities

Contents

Tenants In Common (TIC) ............................................................................................................ 39 Why use a TIC? .................................................................................................................... 39 How does it work? ................................................................................................................. 40 Direct ownership vs. a TIC .................................................................................................... 41 Case Study ............................................................................................................................ 42 TIC Benefits .......................................................................................................................... 43 Securities TICs vs. Real Estate NNN and Master Leases .................................................... 45 Umbrella Partnership Real Estate Trust (UPREIT) ....................................................................... 46 Section 721 Exchange Overview .......................................................................................... 46 UPREIT Benefits ................................................................................................................... 47 Oil & Gas Leases .......................................................................................................................... 48 O&G Characteristics ............................................................................................................. 48 O&G Benefits ........................................................................................................................ 49 Structured Sales ............................................................................................................................ 50 The Structured Sale in Real Estate Transactions ................................................................. 51 The Structured Sale and 1031 .............................................................................................. 52 The Structured Sale and selling a business ......................................................................... 53 Structure Sale Diagram ......................................................................................................... 54

Of the alternative Exchange strategies, the Tenants‐In‐ Common vehicle has become increasingly popular in the past few years. TICS offer the clients the opportunity to passively invest in a Grade A Real Estate Offering, resulting in monthly payments without the hassles of owning and managing typical investment real estate. Since 2002 the IRS has recognized TIC properties as eligible for Exchange under Section 1031. Since that time, hundreds of spectacular properties have been purchased by TIC sponsors and sold to investors that would not typically own this type of real estate.

Many investors have owned and managed investment real estate on their own for years, all the while dealing with “the terrible T’s”. Many investors wish to keep a portion of their portfolios in the real estate class, but are very weary of dealing with the management hassles!

TICs provide all of the benefits of owning commercial real estate, with many advantages without dealing with “trash, toilets and tenants”.

As a fractional ownership, a group of owners (not to exceed 35) can take ownership in Grade A investment property. A check is sent each month with the appropriate share of the revenues generated by the property, and the properties are typically managed by the best property managers available in the area. Along with the positive aspects of owning a TIC, investors are also subject to “cash calls” should the properties expenses exceed its income.

TICs are purchased in much the same way as any property. With the primary difference being that the property is identified well in advance, and the ownership position is reserved until closing. Note that there is also non‐recourse financing involved, with all the benefits associated with Exchanging with debt.

These are a sampling of the properties that have been made available as TICs in the past few years. Since 2002 there have been hundreds of these types of properties purchased by TIC investors, and to date, the vast majority has performed at or above expectations.

TICs can provide an unprecedented level of diversity by spreading a fractional real estate investment throughout multiple geographies, classes and areas. Many clients have Exchanged whole ownership in one type of building located in one area, to many types of buildings in many areas! The chart below outlines some similarities, but more importantly some key differences in direct ownership vs. TIC ownership. Note arrows.

In order to demonstrate the mechanics and the benefits of Exchanging into a TIC property we present this case study which has been derived from the performance of a typical TIC investment. In this study, a $25M Grade A property was purchased by one of the many experienced TIC sponsors. The TIC sponsor pre‐arranges all of the financing, and in this case the Equity/Debt ratio is 30/70. We will assume a typical initial investment of $500K, which a fairly typical amount for most small to mid‐level investors. We are assuming this investor is purchasing 6.7% of the entire property. With fairly conservative distributions, we can see how this investment has provided a strong return with ABSOLUTELY NO MANAGEMENT REQUIREMENTS AT ALL.

Freedom from day‐to‐day

management responsibilities. With no more property to manage, you have more leisure time to relax or pursue other Interests. In addition, because someone else is managing the property for you, there are no geographical limitations. You are free to invest in real estate markets nationwide.

Professional people managing the property on your behalf. The typical Exchange Equity deal is on a long‐term lease to a Credit Rated Tenant (A+‐BBB) who will have strong financials and extensive experience in the management and upkeep of the property. This is the underpinning of the approach of a typical TIC sponsor. This allows them to examine offerings in all sectors, types, and locations of real estate. In addition, because many sponsors co‐invest in the properties that they sponsor, they have a vested interest in the performance of the properties. You can relax because it is the tenant’s responsibility to maintain the property, and for the sponsor to collect the rents, service the mortgage (if any), and handle all of the other asset management responsibilities.

Increased monthly cash flow. Your investment in a TIC interest provides you with a check every month. The cash flow that owners typically receive generally starts at 6.25‐8% per annum. Because exchangors take on a new depreciation schedule, however, cash distributions are typically 50‐100% tax sheltered, depending upon asset class and leverage. The equity appreciation in well‐located real estate speaks for itself.

Properties are identified and researched for you. TIC sponsors do all of the work of locating, negotiating to purchase, providing all of the required due diligence, arranging for the financing, and other work necessary to acquire the new investment property and set up the TIC program. A wide range of TIC properties exist for sale, in many different asset classes and geographical locations, so with the help of your TIC sponsor, you will be able to easily identify possible properties within the requisite 45 days, and acquire them within 180 days. In many cases, TIC sponsors offer a "back‐up" in case your preferred purchase becomes unavailable for some reason.

Invest in larger, safer, higher‐quality institutional properties. As a TIC, you end up with a larger, higher‐quality building leased to Credit Tenants with greater financial strength and stability than any other type of real estate investment typically available to individual investors.

Benefit from multiple tax advantages. Not only can you defer capital gains taxes until death, at which point they are forgiven, but you also can gain additional tax advantages through a new depreciation schedule and in doing so typically shelter 50‐100% of your cash flow.

Gain non‐recourse debt. Accredited investors assume institutional grade, pre‐arranged, non‐recourse (no personal guarantee) financing with easy approval. You can invest in properties that have no debt, or in ones with up to 75% leverage.

Start investing with as little as $50,000. TIC investments have a much lower minimum investment than sole ownership allowing for greater flexibility. Variable investment sizes can start as low as $50,000 and can be structured to match an owners’ equity and debt requirements.

A first‐class way to diversify your assets. Large net proceeds may be split among several properties, and so invested in several different markets and asset classes.

Preserve your capital by investing in properties that continue to appreciate. Profits can be locked in by selling out of highly appreciated markets and then re‐investing 100% of the net proceeds from those sales into growth markets.

Simplify your estate planning. TIC can simplify wealth transfer and estate issues. After all, it’s much easier to divide a monthly check among heirs than it is to divide a building.

Comparison of Tenant‐In‐Common Structures Security Interest versus Real Estate NNN & Master Lease Feature

TIC as Security

TIC as Real Estate (NNN)

TIC as Real Estate (Master Lease)

Full Disclosure of Fees and Transaction Costs

Yes

Complete Reporting Transparency

Yes

Full Disclosure of Terms of Purchase & Risk Factors

Yes

Professional Asset Management

Yes

Master Lease Default Remedies

Yes

IRS Opinion for Rev Proc 2002-22

Yes

IRS Opinion for Rev Proc 2004-86

Yes

Property Management Conflict

Yes

Compliance with IRC Section 1031

Yes

Downside Protection

Investor Control of Management

Yes

Debt (Non-recourse) with Unanimous Consent

Yes

Accredited Investor Status Required

Yes

Highly Regulated Sales Process

Yes

The Omnibus Budget Reconciliation Act of 1993 in the U.S. created Umbrella Partnership REITs (“UPREITs”) As opposed to a traditional REIT where real estate was directly owned, in an UPREIT structure, a REIT could own a controlling interest in an operating partnership (“OP”) that owned the real estate. This structure allows property owners to benefit from tax deferrals when exchanging property interest for units in an OP because an exchange of property interests for OP units will generally not represent a sale for tax purposes. The units of OP could later be converted to REIT shares (a taxable event) when the tax benefits of such conversion were the greatest, thus deferring capital gains tax. Section 721 allows an investor to actually contribute a property into a Partnership. In exchange, the investor receives OP shares which are then converted to REIT shares. Please note, that once an investor receives REIT shares, they are securities, and follow the same regulations as such. Also, you cannot do any further exchanges with this type of vehicle.

 Pay no capital gains tax or depreciation recapture tax  Upgrade property holdings into institutional quality real estate  Eliminate “hands‐on” property management responsibilities  Diversified among various properties across the country  Competitive monthly/quarterly cash flow distributions  No monthly mortgage obligations due to “non‐recourse financing”  Removes or minimizes real estate holdings from taxable estate  Capital gains tax is forgiven or “stepped up” at the death of investor  “OP” units may be transferable, divisible or gifted  “OP” units may become liquid assets upon conversion

Section 1031 classifies an investment in an Oil and Gas Production working interest and Royalty Interest as "like‐kind" for 1031 exchanges. A working interest is a leasehold interest which allows the lessee the right to search for and produce Oil and Gas on a parcel of land and receive a portion of the proceeds of the Oil & Gas produced. Each fractional owner of an offering has the same rights as a single owner and can subdivide or offer for sale their ownership interest at any time on the open market. Liquidity There is an active secondary market for established Oil and Gas Production to sell directly to investors or by auctions specializing in Oil and Gas Production based on projected production and the commodity prices. Life of Production Long term projected production with proved reserves supported by qualified third party reports. Annual Return Average payout of 15% to 18% per annum over the term. This payment must be considered as return of investment as well as return on investment as the future value of the investment will be zero when the production is completed. Tax Treatment Income is eligible for tax free depletion allowance of approximately 15% which is not charged back upon the future sale or 1031 exchange of the investors "fractional interest". Diversification Long term management free investment with secure cash flow with a wholly‐owned interest with the investor controlling the timing and exit strategy. Valuation There are no drilling risks in Oil and Gas Production. Investments are valued on the amount of potential production and the price of the commodity. Prices will increase and decrease and therefore payouts will vary. Over the long term growth should provide an ideal inflation hedge. International rates. Unlike real estate Oil & Gas is a Global commodity that is not solely dependent on the US economy and interest Closing Quick and economic closing. © 2008, 2009 Edmund & Wheeler, Inc. All rights reserved. The enclosed materials and hypothetical examples are provided for educational purposes only and do not constitute tax, accounting, legal or investment advice.

One of the many advantages of O&G is that, unlike buying a building, an energy asset purchase can often be tailored to the exact valuation required for your exchange. In addition, many energy replacement property options offer a much lower minimum investment requirement than many traditional real estate or Tenant In Common (TIC) investments. Under the provisions of Section 1031, oil and gas assets are considered "like kind" for all of the following types of real property: commercial properties, mines and quarries, multi‐family dwellings, residential rental properties, restaurants, timber and timberland, warehouses and undeveloped land. Thus, oil and gas properties are often used as replacement property for real estate and other investments to defer capital gains.

When someone is selling a business, professional practice or real estate, many individuals in these and similar financial situations would like to liquidate their investment without having to recognize the entire profit as taxable income in the year of the sale. Instead of taking a lump sum, the seller can now design a stream of income to meet his or her individual needs. By making the sale and having part of the proceeds payable over time, the seller can use the payment proceeds as a source of income and may be able to recognize the taxable gain as the installment payments are received or deemed received. Enables a 1031 Rescue – in the event a seller is unable to identify suitable replacement property for their 1031 exchange, a structured sale can be executed as a backup plan prior to the close of escrow. However, this option is only available if the original sales contract contained wording allowing for the possibility of a structured sale, and if the structured sale's contracts are signed before the close of escrow. (As a precaution, every sales contract should include such wording. Contact us for proper wording to include this possibility in your sales contract.)

Using a Structured Sale for Real Estate Transactions A “structured sale” is a tax deferral strategy for sellers of real estate. It is an improved version of traditional “installment sales.” It allows the seller to take advantage of tax benefits and income security that were not previously available. In a structured sale the seller is allowed to spread their capital gains tax liability over a span of years, while receiving guaranteed payments. Benefits 

Defer capital gains taxes to the year you receive payments



Earn pre‐tax guaranteed rate of return on principal



Set up payment stream to your liking



Payments guaranteed by ALLSTATE

Structured Sales Examples:

Home owner sells their residence for a large gain Homeowner sells house for $2,000,000. Original purchase price was $500,000. After a $500,000 exclusion, they are left with a $1,000,000 gain. Instead of incurring a large capital gains tax at the time of sale, the seller elects to set up a guaranteed stream of income. The seller now can structure all or a portion of the remaining $1,000,000 and only pay taxes as they receive payments. This is perfect for supplementing retirement.

Clients selling an income property Client wants to get out of the “landlord” business but requires the steady stream of income that the tenants provide. By using a structured sale, the owner can set‐up his structure to mirror his former income, all the while deferring his capital gains. Investor that is not interested in 1031 exchanges and just wants to get out of the market For those clients who do not want to utilize the 1031 option, a structured sale is the perfect alternative. Like a 1031 exchange, a structured sale will defer capital gains tax, but the investment is an annuity, not a “like‐kind” property exchange. Farmer selling his land to developer Many farmers are hesitant to sell their land to a developer because of huge capital gains liability and uncertainty about how to invest the proceeds. Structuring a portion of the transaction can be the “little extra” that makes the deal happen. A guaranteed income stream, resulting in continuation of income and deferral of capital gains are all potential benefits to the farmer. Home owners looking to down‐size their residence Many homeowners sell their property and downsize in order to take a profit, retire, or re‐ locate to a less expensive market. They can structure their profit to match their mortgage on their new home and defer capital gains. If they are retiring, structure plans can be set up to pay a guaranteed income for the rest of their life.

A structured sale should always be identified up‐front in the Exchange Agreement as an alternate strategy. A structured sale can also be used to arrange payments for any proceeds of the sale that are not used to purchase replacement property (boot). This will allow full tax deferral at the time of the Exchange!

Selling a business can be a harrowing experience. Often times, sellers have worked their entire professional career in building their businesses. In many cases, these business assets represent the largest portion of your client’s financial assets. Business buyers invariably will seek owner financing when negotiating terms on a potential business purchase. While owner financing can assist in closing the deal, there are inherent risks associated with carrying paper on a business. Namely, if the buyer should default, then the income stream stops and the seller then gets his business back. In most cases, this is the last thing a seller wants. Typically, when a seller is asked to carry paper, an installment sale is set up. As discussed, this can be risky business. A much safer alternative is to set up a structured sale whereby the seller is guaranteed his payments regardless of the future outcome of the business. Structured sales also provide an exchange vehicle for those business owners who want to exit the real estate class in their portfolios, while providing a steady, management free income stream for the rest of their lives. Note that once a client exchanges into a structured sale, he cannot exchange again!

Assuming the assets being sold qualify for reporting on the installment method, here's how the process would typically work: 1.

The seller enters into an installment sale agreement under which the buyer promises to make periodic payments for a stated number of years. The seller is NOT agreeing to take note from the buyer, rather delay his receipt of cash, and to defer capital gains

The buyer assigns his or her periodic payment obligations to an assignment company.

The assignment company funds the payment obligation by purchasing an annuity from an insurance company.

The insurance company begins making the payments to the seller as agreed to under the terms of the sale and issues an agreement to pay on the performance of the assignment company.

How Do You Summarize 54 Pages?

 Section 1031 is an interest free loan from the government.  Section 1031 is used in less than 10% of the transactions that it should be!  Real Estate Professionals owe it to their clients to understand this powerful tool!  More commissions. More Commissions. More Commissions.  Section 1031 is about Relocation and Reallocation of assets without paying capital gains tax!  Any real property can be exchanged for any other real property!  Section 1031 can be used to dramatically increase the value of holdings by leveraging Uncle Sam’s money.  Ask the 4 Questions: 1. What’cha got? 2. Howd’ya get it? 3. What else ‘ya got? 4. What’cha want?  Nearly every taxpaying entity qualifies for a Section 1031 Exchange!  Personal property can also be Exchanged. “Like-kind” is literal!  There are replacement options available for Section 1031, understand them! o

Tenants-In-Common - Management free real estate investments in Grade A properties

UPREIT - Exchange into a real estate investment trust.

Oil & Gas - A timely alternative to owning real-estate with the same benefits and flexibility.

Structured Sales - An annuity based “paycheck” for failed exchanges and business transfers.

Section 1031 Glossary Section 1031 Exchange This very simply is a Section 1031 Tax Deferral which permits taxpayers to reinvest the proceeds from the sale of property held for investment or business purposes into another investment or business property, and defer capital gains tax that would otherwise be due on the initial sale. Adjusted Basis The original basis plus any improvement costs minus the full depreciation on the property. Agreement for Transfer Purchase agreement, offer and acceptance, sale agreement, earnest money agreement, real estate contract or other contract contemplating the purchase or sale of real property. Boot This is the property the taxpayer receives in the exchange which does not qualify as “like kind" property. Cash proceeds are the most common form of boot and a boot is subject to taxation. Capital Gain The capital gain is calculated as follows: total selling price of the relinquished property, less exchange expenses, less the relinquished property’s adjusted basis. The adjusted basis is the original cost, plus the cost of capital improvements, less depreciation or cost recovery deductions. Capital gains may be subject to depreciation recapture and other rules of the IRS. Construction Section 1031 Exchange You may even purchase replacement property that is not yet built, provided that the improvements on the property are completed prior to the expiration of the 180 days (which can be very difficult). In a Construction Section 1031 Exchange, the property is held by a specially formed Single Purpose Entity called the EAT "Exchange Accommodation Titleholder". A Construction Exchange generally has greater complexity and fees than a Section 1031 Exchange. Constructive Receipt This is a term that refers to the Section 1031 Exchangor having unrestricted control of the equity from the property sold and a Constructive Receipt will invalidate a tax deferred Section 1031 exchange. Contract Section 1031 Exchange A "Contract Exchange" is the tax‐deferred exchange of: The Buyer’s ownership in a Sales Contract on real property, for different real property, or for a contract or option on different real property; or the Option Holder’s exchange of an Option to purchase real property, for different real property, or for an option or contract on different real property. Essentially, a "contract exchange" is a Section 1031 exchange of an open option to purchase, or an open Sales Contract, rather than a Section 1031 exchange of the underlying real estate itself. Cooperation Clause A clause that is added to the purchase on sales agreement requiring the person who is not the Exchangor to use their best efforts to assist the Exchangor in consummating a Section 1031 tax deferred exchange. Exchange Accommodation Titleholder The Exchange Accommodation Titleholder "EAT" is a specially formed LLC used during a Construction Exchange or a Reverse Exchange.

Exchangor The actual owner of the investment property looking to make a tax deferred exchange. Unfortunately an Exchangor cannot be an owner that wishes to defer capital gains tax on a second home. See "like kind" property definition. Exchange Funds Account a.k.a. the Qualified Escrow Account The account established by the qualified intermediary (QI) to hold the exchange funds. Exchange Period A 180 day window in which the Exchangor has to complete a tax deferred exchange. During the Exchange Period there is a 45 day Identification Period in which the Exchangor must identify which property or properties that will be purchased. Both time periods begin on the day of the sale of the Relinquished Property. The Fair Market Value This is likely selling price as defined by the market at a specific point in time. Forward Delayed Exchange A type of exchange which occurs when a property is sold "Relinquished Property" and another property is purchased "Replacement Property" within 180 days following the sale of the Relinquished Property. Identification Period The time period that begins upon the "close of escrow" of the Relinquished Property. During this 45‐day period, the Section 1031 Exchangor must identify the Replacement Property in order to continue with the Section 1031 exchange transaction. Identification Letter An Identification Letter form is used to identify potential Replacement property or properties. IRS Section 1031 Tax Code Internal revenue code section 1031. "Like‐Kind" Property The properties involved in a tax deferred exchange must be similar in nature or characteristics. "Like kind" real estate property is basically any real estate that is NOT your personal residence or NOT a second home. The Napkin Rule You must buy a Replacement Property of equal or greater value to the Relinquished Property in order to completely defer the applicable capital gains tax. If you purchase a property of lesser value, you will be responsible for any tax on the difference. You must use all the cash proceeds from the sale on your purchase in order to completely defer the applicable capital gains tax. If you don’t use all your proceeds on the purchase, you will be responsible for any tax on the difference. Original Basis This is the purchase price of a property and it is used to calculate capital gains or losses for tax purposes. Personal Property Any property belonging to the Section 1031 Exchangor that is non real estate related. Qualified Escrow Account The account established by the qualified intermediary (QI) to hold the exchange funds.

Qualified Intermediary The Intermediary is also known as, QI, Accommodator, Facilitator and Qualified Escrow Holder. A third party that helps to facilitate the exchange and holds funds in escrow. Real Estate Exchange A type of Exchange of real property for real property. All types of real property are "like kind" for other real property, including vacant land, residential, commercial, and even some long term leases. Relinquished Property The original property being sold by the taxpayer when executing a Section 1031 exchange. Replacement Property Is the new property being acquired by the taxpayer when executing a Section 1031 exchange. Reverse Exchanges This is the type of exchange in which the Replacement Property is purchased before the sale of the Relinquished Property. Rules of Identification The guidelines that must be followed when making a Section 1031 tax deferred exchange, such as the 3 Property Rule, 200% Rule, and 95% Rule. Settlement Agent Definitions include: Title agent, closing officer, escrow officer, settlement officer, closing agent, closing attorney, settlement attorney. Tax Deferred Exchange The procedure outlined under IRS Code Section 1031 involving a series of rules and regulations that must be met in order to take full advantage of deferring capital gains tax on the sale of investment real estate. Section 1031 tax‐ deferred exchanges are also commonly known as: Starker exchanges, delayed exchanges, like‐kind exchanges, 1031 exchanges, Section 1031 exchanges, tax‐free exchanges, nontaxable exchanges, real estate exchanges, real property exchanges. Though all of these terms refer to the same thing, the most typical term used today is the Section 1031 Exchange. Tenancy In Common (TIC) A fractional or partial ownership interest in a piece of property, rather than owning the entire piece of property. Three Property Rule The Exchangor may identify up to 3 properties, without regard to their value. The 200% Rule The Section 1031 Exchangor may identify more than three properties, provided their combined fair market value does not exceed 200% of value of the Relinquished Property. The 95% Percent Rule The Section 1031 Exchangor may identify any number of properties, without regard to their value, provided the Exchangor acquires 95% of the fair market value of the properties identified.