Investment real estate is commonly owned by co-owners in a partnership containing two or more partners, or by co-owners as tenants in common. An exchange of a tenant in common interest in real estate poses no problems and is eligible for 1031 Exchange treatment. However, an exchange of an interest in a partnership is not permitted under the Code and Regulations.
If a partnership owns property and desires to sale/exchange the property, then the partnership is the entity that is the Exchanger and party to the Exchange Agreement. The partnership will take title to the replacement property.
Frequently, individual partners in a partnership desire to take their share of the proceeds of sale of the partnership property, replace with qualifying 1031 replacement property in their own names and end their relationship with the partnership. This presents problems that require careful planning and is not without tax risk.
If a two-partner partnership wishes to discontinue the partnership, sell the property and go their separate ways with either the cash or a 1031 Exchange, it is necessary for the individual partners to receive deed to the property from the partnership in advance of the sale of the property. This is done in the context of a distribution of property from the partnership to its partners. The individual partners are then generally required to hold the property as tenants in common for an unspecified period of time (decent interval of time) in order to comply with the "held-for" requirement of 1031 Exchanges that requires a taxpayer to have "held" qualifying property for business or investment purposes prior to the exchange.
If a partnership with multiple partners wishes to exchange property but some of the partners want to "cash-out" or go separate ways, it is common for the partnership to do a "split-off." The partnership distributes tenancy in common title to a portion of the partnership property to those individual partners who wish to proceed in separate directions, and the partnership (and its remaining partners) proceed with an exchange in the name of the partnership.
The services of a tax professional is essential for tax planning and structuring for successful exchanges of partnership and co-ownership interests in real estate.
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