Chicago Deferred Exchange Company 1031 Blog

Exchange of Emission Credits Deemed Like-Kind

PLR 201024036 concludes that the underlying nature and character of the rights conferred by emissions credits for nitrogen oxide emissions (NOE) are like-kind to the rights conferred by emissions credits for volatile organic compounds (VOC).

Interestingly, the ruling also concludes the Parent Corporation (Parent) is deemed to have held the emission credits for investment or for use in its trade or business, despite the fact that the credits had only recently been contributed to Parent
by its wholly-owned Subsidiary (Sub).

In the conduct of their business, Parent and Sub emit nitrogen oxide that is a by-product of natural gas combustion.

Parent and Sub also generate volatile organic compounds, which are chemical compounds that evaporate under specific conditions.

Sub owns NOE credits that it obtained after installing emission reducing equipment in its facility.

The credits are government issued licenses that permit Sub to emit certain levels of pollutants without penalty. The credits are intangible personal property for federal income tax purposes that Sub holds for investment or for use in its trade or business.

Parent anticipates needing additional VOC credits in the conduct of its business and desires to exchange some of Sub's NOE credits for additional VOC credits from an unrelated third party.

To achieve their objective, Sub contributes NOE credits to Parent who immediately exchanges them for VOC credits.

The IRS concluded that the underlying nature and character of the emission credits were like-kind and therefore eligible for non-recognition of gain under IRC Section 1031.

Additionally the Parent is considered to have held the NOE credits for investment, or for use in its trade or business. There is no rationale cited for this statement.

Is a Deed in Lieu of Foreclosure a Viable Option for a 1031 Exchange?

Deed in Lieu of Foreclosure - 1031 Exchange Potential?

Burdened by too much debt and beleaguered by falling property values and strained cash flows, many investors are choosing to walk away from their equity and their properties – turning the keys over to the lender perhaps to avoid a judicial foreclosure, or contemporaneously with a foreclosure filing.

When debt is discharged for an amount less than its face value, the borrower may be required to recognize income on the amount of debt forgiven. The theory that forgiveness of debt creates taxable income stems from the idea that when loan proceeds are originally received by a borrower, they are not subject to income tax.

The loan proceeds represent an asset – funds that may be used by the borrower in any way the borrower sees fit. That asset is offset by a liability of equal value, namely, the requirement that the loan be paid back.

Generally, simultaneously with the borrowing, there is some tax benefit realized by the borrower: tax-free use of loan proceeds or an addition to basis when acquiring financed property. If the loan is subsequently forgiven or discharged at a discount, the borrower must (with certain exceptions) include that amount in gross income as an offset to the original favorable tax treatment.

Can a tax-deferred exchange be successfully completed in a situation where an investor transfers encumbered property to its lender in lieu of foreclosure? What are the implications? If an investor is so upside down on their debt that they are facing possible foreclosure, what is the likelihood that an exchange would be successful?

The IRS considers the transfer of encumbered property back to a lender, in lieu of foreclosure, as a sale that is subject to recognition of gain or loss under Section 1001. Worse yet, if the debt is nonrecourse, the entire amount of debt is included in calculating the amount realized from the sale – regardless of whether the debt exceeds the current fair market value of the property.

Structuring a tax-deferred exchange around a transfer of property in lieu of foreclosure is one way to delay the recognition of gain.  The issues are complex but if structured correctly, the result can be meaningful.

Beware - Shortened Exchange Period

Real estate, legal and tax professionals are intimately familiar with the requirements under IRC Section 1031 that Replacement Property must be identified within 45 days after the date the Relinquished Property is transferred in the exchange. But overlooked occasionally is language from Section 1031(a)(3)(B) which defines the 180-day exchange period during the last quarter of the year.

 THE EXCHANGE PERIOD COULD BE LESS THAN 180 DAYS

For taxpayers with an April 15^th tax filing deadline selling Relinquished Property with closings between October 17, 2009 and December 31, 2009, the second provision noted above becomes critically important and, if ignored, could result in a failed exchange. Section 1031 (a)(3)(B) requires that Replacement Property be acquired the earlier of:

§ 180 days after the date Relinquished Property is transferred in the exchange OR

§ The due date (determined with regard to extensions) of the Taxpayer’s return for the taxable year in which the Relinquished Property is transferred.

FOR EXAMPLE…

Taxpayer sells investment property on November 1, 2009 and enters into a tax-deferred exchange. On December 16, 2009 (45 days after November 1, 2009), Taxpayer identifies one Replacement Property…

 

THE SOLUTION

In order for the Taxpayer to have the full 180-day period to complete this exchange, he or she must request a filing extension for its 2009 return. If the Taxpayer fails to request an extension, the exchange period ends on the due date of Taxpayer's return (e.g., April 15, 2010). If the Taxpayer requests a filing extension, he or she has until April 30, 2010 to complete this exchange, 180 days after November 1, 2009.

Commercial Real Estate and IRC Section 1031

Capmark Real Estate, one of the country's largest commercial real estate lenders, filed for bankruptcy protection on Sunday October 25, 2009 signaling that the problems facing commercial real estate investors and lenders are far from over.