Guidance for Utilizing Sections 121 & 1031 in Combination
Virtually all CPAs, tax attorneys and other tax professionals will bring the Principal Residence Exclusion under Section 121 of the IRC to the attention of their clients at some point in their careers. Likewise, there is an equal probability that tax professionals will suggest that at least one of their clients conduct a tax-deferred exchange under Section 1031.
Both of these sections are among the most financially beneficial provisions of the tax code. Just by themselves, each of these sections has the potential to save taxpayers hundreds of thousands – and even millions, if Section 121 be used repeatedly – of dollars in taxes.
Section 121 refers specifically to personal residences, while Section 1031 refers to real property held for investment or business purposes. Previously, Section 1031 could be applied to personal property held for business or investment, but this application was recently removed with the Tax Cuts & Jobs Act. While these sections are undoubtedly powerful when used separately, when used together in combination they can be even more useful for taxpayers.
Converting Property Before the Sale
Section 121 allows individual taxpayers to eliminate up to $250,000, and married taxpayers (filing jointly) to eliminate up to $500,000, of gain from the sale of a “principal residence” (or “primary residence”). To qualify as a principal residence, taxpayers must own and reside in the property for at least 2 years out of the most recent 5-year period. These 2 years do not have to run consecutively, and so it’s possible for a taxpayer to reside in a property for 1 year, live elsewhere for 3 years, go back and reside in the property for another year and then sell the property using the benefits of Section 121.
If you want to combine these sections prior to the sale, you will have to establish the property as your personal residence and then convert the property into an investment vehicle. This means that you will need to satisfy the time requirement of Section 121 and the holding requirement of Section 1031.
Section 1031 is only eligible for real property “held for” productive use in trade or business or for investment. Unlike with Section 121, this holding requirement is not strictly a time requirement, but is based on the intent of the taxpayer, and intent is established by considering all relevant facts and circumstances surrounding the taxpayer’s ownership of the property.
Here’s how a transaction involving both 121 and 1031 before the sale might proceed:
you acquire a property, move in and reside for 2 years, and then exits and converts the property into a rental
you then hold the property for investment for 18 months, being very careful to treat it just as you would treat any other piece of investment property
you sell the rental property and are able to utilize the exclusion provided by Section 121 and also the tax deferral benefits provided by Section 1031
Utilizing 121 & 1031 in an Allocation
Sections 121 and 1031 may also be combined in cases involving partial personal use of an investment property. You may currently reside in only a portion of your investment property. For instance, you may own a multi-unit rental complex – say a complex with 4 units – and resides in 1 of the units and rents out the remaining 3 to unrelated renters. In this scenario, you would be able to utilize both sections, just as in the example given above, but you would need to “allocate” the portion used as a personal residence when conducting a 1031 exchange.
Suppose that your 4-unit complex has a sales price of $1 million. In this case, the taxpayer would allocate the personal residence portion and invoke Section 121 to eliminate the gain associated with that portion rather than the entire complex. In other words, only the gain realized from the personal residence portion would be eligible for exclusion under Section 121, whereas the remaining proceeds from the other 3 units would need to go toward replacement property under Section 1031.
Converting Property After the Sale
The rules for using these sections in combination after the completion of a Section 1031 exchange are a bit more involved and so you will need counsel. After completing an exchange, taxpayers may convert their replacement property into a personal residence and then take advantage of Section 121 to eliminate some (or all, depending on the situation) of the gain.
However, in this scenario, taxpayers must own the replacement property for a minimum of 5 years following the exchange transaction; this is true even though taxpayers still only need to use the property as a personal residence for 2 years to satisfy the use requirement of Section 121. After owning the property for at least 5 years, and using it for at least 2 years during this time period, taxpayers may sell the property used in the exchange and utilize Section 121.
But, in the case of a post-exchange conversion, the time that the taxpayer uses the property as a personal residence figures what amount of the gain is eligible for exclusion. The rule works like this: the amount of time during which the property is used for investment purposes is considered “non-qualifying use” for Section 121, and so that amount of time cannot be used toward the exclusion; taxpayers will put the amount of non-qualifying use in a fraction as the numerator, and the total number of years that the property is owned will be put as the denominator.
The fraction which shows up represents the portion of the realized gain which is not excludable under Section 121. Here’s an example:
you finish a like-kind exchange and then own the property for a total of 8 years after the transaction
you rent out the property for just 2 years following the exchange, and then move in and establish the property as your personal residence for the next 6 years.
You then decide to sell the property and wants to use Section 121.
In this scenario, 2/8 of the gain (or ¼) would be considered not excludable under the principal residence exclusion because that would represent the non-qualifying use period during which the property was used for investment.
It’s important to remember that the holding requirement still applies on this post-sale side of the transaction, and so practitioners should be sure to counsel their clients about the risks associated with converting their property into a personal residence prematurely. If taxpayers do not satisfy the holding requirement on the post-sale side, they run the risk of having the underlying 1031 exchange transaction nullified by the IRS.