Seller Carrybacks and Dispositions

A Seller Financed Sale is usually incompatible with a desire to do a Section 1031 Exchange of real estate. The reason is that a promissory note is property received which does not meet the requirement that real estate be exchanged solely for other like-kind property (real estate). If seller financing is necessary due to circumstances, and if a delayed exchange with the use of an Intermediary is employed, it is possible to salvage Section 1031 Exchange treatment by one of the following procedures:

• The taxpayer can bring cash to the closing table in exchange for the promissory note. The boot offset rules described above make the note not taxable. Boot "paid" offsets boot "received. This can be done at either the relinquished property closing or the replacement property closing. However, do not use acquisition financing to fund the cash at the replacement property closing table; the IRS will interpret that as incurring additional debt boot paid to offset cash boot received, which doesn't work. If cash is brought to the replacement property closing table, the Intermediary will have to hold the note until the closing occurs.
• The Intermediary can take and hold the promissory note as part of the exchange proceeds and hold the note until a disposition occurs, including holding for cash to be brought to the replacement property closing table as described above. Or, perhaps the note can be paid while it is being held by the Intermediary and prior to the closing of the replacement property. Or, the taxpayer or an investor could buy the note from the intermediary while it is in the Intermediary's possession (see below).
• The Intermediary could sell the promissory note to a financial institution or investor and use cash received to acquire qualifying replacement real estate for the seller under the Exchange Agreement.
• The Intermediary could use the promissory note in his possession as consideration for the acquisition of replacement property. A problem with this is that in the hands of the seller of the replacement property, the note is a third-party note not eligible for installment sale reporting under IRC §453. Accordingly, there is disincentive for the seller to take the note as part of the consideration to be received from the sale of his property. This problem is compounded if the seller is also trying to do a 1031 Exchange of his property.