If you spend time in commercial real estate, investment property, or the passive real estate investment space, you’ve probably heard many professionals say: “We do 1031 exchanges.”
- Real estate brokers
- Delaware Statutory Trust (DST) sponsors and brokers
- Syndicated TIC sponsors
- Investment advisors
- Closing agents
- Even some marketing companies (by implication)
The result is predictable: investors often walk away unclear about who is actually responsible for facilitating a 1031 exchange and what role each professional plays.
At 1031 CORP., an independent Qualified Intermediary (QI), we regularly hear investors say:
- “I want to 1031 into a REIT.”
- “Tell me about a DST 1031.”
- “I am considering a 1031, DST, or 721.”
- “I don’t want to be a landlord anymore. What are my options so that I can still defer taxes?”
This confusion has grown as more companies weave “1031 exchange” into their branding without clearly explaining what they do—and what they don’t do—in the transaction.
Key takeaway: A 1031 exchange is a tax-deferral strategy governed by IRC Section 1031 and must be facilitated by an independent and objective Qualified Intermediary (QI), regardless of the replacement property you choose, including a DST.
There Is Only One Set of 1031 Exchange Rules
Section 1031 of the Internal Revenue Code does not create separate categories of exchanges. There aren’t different rulebooks for:
- DST exchanges
- Commercial exchanges
- Residential rental exchanges
- Large exchanges
- Small exchanges
- Single-property exchanges
- Multi-state exchanges
The same 1031 timelines and requirements apply no matter:
- The size of the transaction
- The type of relinquished property
- The replacement property selected
- The exchanger’s investment strategy
So Who Actually “Does the 1031 Exchange?”
In a delayed exchange, the QI is the party that facilitates the exchange under the Treasury Regulations. Practically speaking, the QI is the independent third party responsible for:
- Guiding the exchanger through the exchange process
- Providing necessary exchange documents
- Coordinating the exchange structure
- Holding exchange proceeds
- Receiving assignment of sales contracts
- Tracking critical deadlines
- Managing identification requirements
- Helping ensure the exchanger does not receive actual or constructive receipt of funds
Without a properly structured exchange facilitated by an independent QI, most delayed exchanges—where the client sells first and buys second—will not qualify for tax deferral under Section 1031.
Every Professional Has an Important—But Different—Role
A successful 1031 exchange usually involves a team. Each professional is important, but each has a distinct job, and only the QI facilitates the exchange.
The CPA or Tax Advisor
The exchanger’s CPA or tax advisor evaluates:
- Tax consequences
- Depreciation recapture
- Basis calculations
- Partnership considerations
- Estate planning issues
- Whether a 1031 exchange makes financial sense
The QI does not provide tax advice, and the exchanger’s tax advisor cannot serve as the QI.
The Attorney
The exchanger’s attorney may assist with:
- Legal structuring
- Entity formation
- Contract review
- Asset protection
- Estate planning
- Complex ownership matters
The QI does not provide legal advice, and the exchanger’s legal advisor cannot facilitate a 1031 exchange.
The Real Estate Broker
The commercial broker or residential real estate agent helps:
- Sell relinquished property
- Locate replacement property
- Negotiate transactions
- Identify investment opportunities
The exchanger’s real estate broker or agent cannot serve as the QI.
The DST Sponsor or DST Broker
DST professionals help investors evaluate DST offerings as potential replacement property.
Remember, the DST is the replacement property. A DST sponsor or broker is not a QI and cannot facilitate the exchange. A DST is simply one form of replacement property that may qualify under Section 1031. Choosing this passive investment doesn’t create a different type of exchange.
Why Marketplace Confusion Is Growing
Much of the confusion comes from marketing. Some advertise or emphasize “1031 exchanges” even though their primary business is actually:
- Selling DST investments
- Offering securities
- Providing investment opportunities
- Generating replacement property leads
This can make it hard for investors to tell:
- Who is facilitating the exchange
- Who is selling investments
- Who is providing advice
- Whether the company is acting as a QI
As a result, investors often believe:
- The investment company itself is automatically handling the exchange process
- They must buy a DST to complete a 1031 exchange
- A DST exchange follows different rules
Those misunderstandings create avoidable risk.
Who Can Serve as a Qualified Intermediary?
This is one of the most misunderstood parts of the 1031 exchange landscape.
Many investors assume that QIs are heavily regulated or licensed. In reality, in most states the barriers to entry are surprisingly low.
In many states:
- No special license is required
- No minimum experience is required
- No testing is required
- No certification is required
- No formal training is required
- No insurance is required
That means almost anyone can technically open a company and market themselves as a 1031 exchange facilitator.
Who Cannot Serve as the Qualified Intermediary?
Treasury Regulations prohibit certain parties from serving as the exchanger’s QI. Generally, a “disqualified person” cannot act as the QI if they have served as the exchanger’s advisor or agent within the two-year period preceding the exchange:
- Attorney
- CPA or accountant
- Investment banker or broker
- Real estate agent or broker
- Employee
- Partner
- Close relative
The purpose of this rule is to ensure the QI remains independent and objective.
Ownership Restrictions Also Matter
Independence issues don’t stop with direct involvement.
A disqualified person generally cannot own 10% or more of the Qualified Intermediary entity and still facilitate exchanges for that person’s clients.
For example:
- A real estate broker referring clients generally cannot own 10% or more of the QI facilitating those exchanges
- Similar concerns can apply to CPAs, attorneys, investment advisors, or other disqualified parties
The IRS intended the QI to function independently — not as an extension of the exchanger’s existing agent relationships.
Referral Fees Can Create Additional Concerns
Another topic worth understanding is referral fee arrangements between Qualified Intermediaries and disqualified parties. Many times over the years, 1031 CORP. has been asked if we pay referral fees.
Referral fees are not automatically prohibited, but certain compensation structures may raise questions about a QI’s independence.
For example:
- What happens if a disqualified party receives too large a portion of the total income earned by the QI on a particular exchange?
- Does that create an indirect economic interest?
- Could the arrangement blur the line between an independent QI and the exchanger’s existing agent?
The Treasury Regulations do not specifically address every referral fee structure. However, if a compensation arrangement suggests the disqualified party has substantial participation in the economics of the exchange facilitation business, which could invite scrutiny regarding whether the QI is truly independent.
These arrangements raise important questions:
- Is the exchanger aware of the compensation relationship?
- Is the QI acting independently?
- Does the arrangement create conflicts of interest?
- Could the structure jeopardize the integrity of the exchange?
These are not issues exchangers should discover after an IRS audit.
Why Experience Matters When Choosing a Qualified Intermediary
Because barriers to entry are low, investors should carefully evaluate the experience and infrastructure of the QI facilitating their exchange.
A common but incomplete question is: “How long have you been in the 1031 industry?” It can be misleading because someone may have been adjacent to the industry for years without directly facilitating exchanges.
Someone may have years of experience:
- Selling DST investments
- Marketing exchanges
- Working in escrow
- Performing administrative support
- Operating adjacent to the industry
This does not mean they have the substantial experience needed to facilitate exchanges as a QI. A far better question is: “How much experience do you have directly facilitating 1031 exchanges?”
Investors should also ask:
- How many exchanges have you facilitated?
- What types of exchanges do you regularly handle?
- Have you handled reverse exchanges or improvement exchanges?
- How are exchange funds safeguarded?
- What cybersecurity protections are in place?
- What internal controls exist?
- Who prepares the exchange documents?
- Does the QI outsource document management, or is it handled by an in-house exchange team?
- What happens when problems arise during the transaction?
Not all QIs possess the same level of experience, infrastructure, or expertise.
The Best 1031 Exchanges Happen When Everyone Understands Their Role
The 1031 exchange industry functions best when:
- CPAs provide tax guidance
- Attorneys provide legal advice
- Brokers locate investment opportunities
- DST professionals explain DST offerings
- Closing agents coordinate settlements
- Qualified Intermediaries facilitate the exchange itself
Each professional serves an important purpose. But clarity matters. Investors deserve to understand:
- Who is facilitating the exchange
- Who is selling investments
- Who is providing advice
- Whether the structure complies with IRS requirements
At the end of the day, a 1031 exchange is too important and often involves too much money to risk confusion about roles, responsibilities, or independence requirements.
Choosing the right Qualified Intermediary is not simply an administrative decision. It is a risk management decision.
In the end, it is one of the most important decisions an exchanger can make.
