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Can you do a 1031 Exchange into a REIT? Yes, here's how...

Can you do a 1031 Exchange into a REIT? Yes, here's how...

December 06, 2018

As a professional financial adviser who also has a history in real estate and real estate investing the concept of a 1031 Exchange is extremely attractive.  As I began to learn about the strategies that allow investors to use 1031 exchanges to go into securities products it became even more exciting.  

So who is this strategy normally for?  1. If you're getting ready to retire and want to stop physically managing your properties but don't want to get hit with capital gains taxes if you sell. 2. If you're looking to move a portion of your portfolio into a non-managed bucket. 3. If you're planning your estate and want an efficient way to leave property to your heirs.  It is important to note that you need to be an accredited investor

First, let’s explain the nature of real property, 1031 exchanges, and REITs.

Real Property vs. Securities

When you sell a property, you are disposing of your tangible real estate or what the IRS refers to as “real property." A 1031 exchange allows you to trade or exchange “for property of like-kind, which is to be held either for productive use in a trade or business for investment,” according to Internal Revenue Code (IRC) Section 1031 (a)(1). In plain English, this means if you’re using a 1031 exchange to defer capital gains taxes, you need to find one or more similar properties in which to invest, within a certain time frame. You’re dealing with tangible, real property, meaning your cash flow comes directly from rental income.

While REITs also handle real property, the investment structure is different. REITs buy a lot of real estate properties and put them in a portfolio. Investors buy shares in the REIT, rather than the entire property, and their cash returns come from dividends, rather than rental income.

As such, a REIT is defined as a security, rather than real property. To qualify for tax-deferred exchange treatment under Section 1031, you can’t directly exchange out of your property into a security.

Getting There by Exchanging

The good news is you can change from a property owner to a REIT investor (without the tax gains) with help from IRC’s Section 721, defined as “Nonrecognition of Gain or Loss on Contribution to a Partnership.” To do this, you exchange out of your property into a Delaware Statutory Trust (DST), which is usually controlled by the REIT. You then have the option to convert your ownership in the DST into shares for Operating Partnership (OP) units through an Umbrella Partnership Real Estate Investment Trust (UPREIT).

This is a lot of word stew, so let’s break it down.

First, the DST. We’ve written about this before. Exchanging out of your real property into a DST offers you a viable tax-deferral option by giving you fractional co-ownership of real property. DSTs may offer diversification, monthly cash flow with no landlord obligations.

But, if the REIT investment is your final destination, the DST can be considered a stop along the way. The UPREIT is your next step. Real Estate Investment Trusts offer UPREITs as a way for investors and DSTs to exchange real estate shares into OP units. Because such a contribution is being made to a partnership (which falls under IRC 721), you defer capital gains taxes, unless you decide to convert your OP units to REIT shares. In the meantime, as an OP unit holder, you’re entitled to the REIT’s dividends.

There are other advantages to such an exchange, as well.

  • Liquidity. Your real property isn’t liquid. But your OP units are, if you should decide to exchange them into REIT shares. Keep in mind, however, that doing so will lead to a taxable gain, but only on the OP units your exchange. This means you can manage your capital gains and pay them when you choose to!
  • Diversification. Rather than a single property providing cash flow, an UPREIT investment provides you with cash flow from a portfolio that is specifically balanced against economic volatility.
  • Efficient estate planning. UPREIT OP units can be passed down to your heirs on a stepped-up basis. This eliminates capital gains taxes (unless the units are converted into REIT shares) while providing your heirs with continued dividends.

“What is the catch?” you might be thinking. The issue to remember here is that, once you complete the UPREIT process, that’s the end of the line. There are no 1031 exchanges out of an UPREIT (or REIT) into physical, or real, property. Your investment must remain in the form of OP units to defer capital gains taxes.

Still, when handled correctly, the DST-721/UPREIT exchange it can offer a viable alternative to direct property ownership while keeping capital gain taxes at bay.

Keep in mind that this is just one strategy of many where you can use 1031 Exchanges to get into securities products.

If you have any interest in discussing the various strategies that are available please reach out to us.

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