Hi, this is Tilden Moschetti of Moschetti Syndication Law Group. Today we have a question about 1031 exchanges and syndication. Can the two go together both going into a syndication and coming out of the syndication using a 1031 exchange?
The question I occasionally hear about putting together a syndication as a syndication lawyer is, “Can I do a 1031 exchange as a syndicator?” Now, there are obviously two different questions going on at the same time. First, can I get investors who want a 1031 exchange into my syndication? The answer is yes, but it is a little complicated.
It’s complicated because a 1031 exchange really exists in a tax world and a title to the property world. A syndication exists more in the syndication world or a business entity in a securities world. So putting the two together is a little bit more challenging.
The answer is, yes, you can do it, but here’s how it has to happen. The investor that you want to come into your syndication would basically be doing a 1031 exchange into a subset of that property as a tenant in common. What would exist on title is that tenant in common structure, and then also your syndication, also as a tenant in common.
The challenge with tenant in commons is that each tenant in common structure gets to vote on what happens with the property. For example, a 1031 investor who comes into your property and has that tenant in common structure may not want to sell when you want to sell the property at exit time. It’s going to be very challenging to force that tenant in common to sell their interest, because it’s up to each tenant in common to make the determination on when they’re going to sell.
There is an inherent challenge and risk to the entire syndication structure. From a practical point of view, while you could sell your tenant in common interest and leave that other investor in existence, it’s not very practical that you’ll be able to sell that little portion. It’s also challenging to get financing on a property, because that tenant in common investor will need to come along and sign all the loan docs along with you as well.
So, the answer is yes, you can have investors come in as tenants in common through a 1031 exchange, but it is pretty challenging. Our recommendation is to make sure that the threshold is pretty high. You don’t want them to just be using a 1031 exchange in order to place $1,000. The amount of headache that you’re going to have is not worth it. If they’re investing a million dollars worth of value, it might be worthwhile to have that discussion.
The second question is: Can my syndication itself do a 1031 exchange out of the property? The answer there too is yes. If everybody wants to come along for the ride, and you want to do a 1031 exchange from one property to another property, both of them are investments and it meets all of the other criteria of 1031 exchanges. Because it’s a single entity doing it, it’s pretty straightforward how to do it, and your regular accommodator can take care of it and make sure that it happens correctly.
The time where we say, “but maybe not,” is in the case where you want to make that 1031 exchange, but some of your investors want out, and the rest of them want to go along with that exchange. From an IRS point of view, there isn’t really a challenge. But if the property happens to be located in a state where the Franchise Tax Board or whatever the taxing authority is, is not as willing to go along with the program, you’re going to have problems.
For example, if you were to try and do this in California, the Franchise Tax Board there is very aggressive when it comes to collecting taxes on 1031 exchanges. They want their money back as quickly as possible. So the Franchise Tax Board in California is likely to file a claim and file a lawsuit against your syndication saying that it was not a valid 1031 exchange because you had investors who got paid out earlier.
If all of your investors are from a state that is more accepting of this and there are some that wish to stay outside or don’t want to participate in the 1031 exchange, then you’re not going to have that issue. The IRS’s position has generally been that it is okay to 1031 exchange out because that’s what would make sense, as it’s a single entity still doing it. It doesn’t matter if it’s a partnership interest from a tax point of view, or anything like that.
I hope that helps. My name is Tilden Moschetti. I am the founder of Moschetti Syndication Law Group. We do private placement memorandums, operating agreements, really everything you need in order to be in compliance with the SEC under Regulation D. If you need any help, feel free to give us a call and we can help you with your syndication project.