Installment Sale Treatment for Failed 1031 -- Maybe Not This Year!

An exchange started near the end of a tax year will often run into the following tax year. And the regulations address how to handle incomplete exchanges and cash “boot” received in the following year.

If you structured your exchange with a “bona fide intent” to complete the exchange, you may report the exchange as an installment sale in the tax year in which the first relinquished property was sold.  Under the installment sale reporting rules, the receipt of an indebtedness that is secured directly or indirectly by cash or a cash equivalent is treated as receipt of payment.  The regulations state that exchange proceeds held by a qualified intermediary could fall into that category and as long as there is a bona fide intent to exchange, the taxpayer can report cash not reinvested in replacement property as an installment sale. [Reg. 1.1031(k)-1(j)(2); Temp Reg. 15a.453-1(b)(3)(i)]

A taxpayer has “bona fide intent” if it is reasonable to believe, based on all of the facts and circumstances at the beginning of the exchange period, that identified replacement property would be acquired to complete the exchange.

Any cash “boot” received in the following tax year can be reported using the installment sale method.  Cash “boot” is any cash not reinvested in replacement property and paid directly to you from the qualified intermediary.  This would apply when replacement property is acquired but not all of the exchange proceeds are used or when no replacement property is acquired. 

Advantages of Using Installment Treatment…Not so Fast!
Reporting the cash “boot” using the installment sale method would allow you to defer the gain until the following tax year when you actually receive the exchange proceeds from 1031 CORP.  This reporting strategy has enabled those with a failed exchange to postpone the tax at least one tax year and has been very advantageous to investors.  However, those considering this strategy for a failed 2012 exchange should carefully determine if it is more advantageous in your particular situation to report the entire gain in 2012 when tax rates were lower or take the installment sale treatment. 

The regulations do not address how to handle liability relief (the sale proceeds of your relinquished property used to pay off debt against the old property) and whether the gain is due in the year of the sale or in the following tax year provided you had the bona fide intent to complete the exchange.  Revenue Ruling 2003-56 related to a partnership whose exchange straddled two tax years.  The ruling holds that if the exchange straddles two taxable years of the partnership, the amount of the relinquished liability that exceeds the amount of the replacement liability is treated as money or other property received in the first taxable year of the partnership, since the excess is attributable to the transfer of the relinquished property.  This reasoning should also apply to other taxpayers.

It is essential that you discuss your situation with your tax advisor to determine what is best for you.