M id A tlantic Real Estate Journal — February 19 - March 12, 2021 — 23A


M id A tlantic R eal E state J ournal By Dwight Kay, Kay Properties and Investments Do DSTs work for a 1033 exchange due to eminent domain or involuntary conversion?

Mid Atlantic Real Estate Journal



tially serve the community or help raise the tax base, such as a new convention center hotel or a hospital. Eminent domain or condemnation also can come into play when a property has been destroyed by a natural disaster, such as flooding, hur - ricanes or wildfires. Although eminent domain sounds a bit onerous, prop- erty owners are entitled to fair compensation for that property. Once that eminent domain transaction is com- plete, the question is what to do with that pile of cash? Just as with any property sale where the transaction generates a profit, any income recognized from that eminent domain acquisition is subject to capital gains tax. One way to potentially defer that tax bill is to roll the proceeds from the sale into a tax-deferred like-kind exchange. Whereas the 1031 Exchange is used for tax-deferred reinvestment in most property sales, eminent domain has its own separate category that falls under a 1033 Exchange. Key differences and similarities in a 1031 vs 1033 Exchange A 1031 Exchange and a 1033 Exchange were designed for exactly the same pur -

pose. Both are sanctioned by the IRS as a means to defer capital gains taxes. However, there are some key differ- ences that an owner should be aware of when conducting a 1033 Exchange. One notable item is that similar to a 1031 Exchange, a 1033 Exchange allows the taxpayer to fully defer both capital gains and any potential depreciation recapture taxes that may be incurred from the government acquisition. In other words, 1033 Exchanges have the potential for the taxpayer to avoid an even bigger tax bill. In addition, the rules on a 1033 are considered by many to be a bit more relaxed, giv - ing property owners more time and flexibility to successfully execute the exchange. Some of those key differences are: More time to execute. The IRS gives taxpayers two years from the date the sale closes to complete a 1033 exchange (three years if granted a fur- ther one-year extension) com - pared to 180 days for a 1031 Exchange. • No limit on replacement IDs. The taxpayer has no restrictions on the number or dollar value of potential re- placement properties they can continued on page 24A

nde r s t and i ng the rules of a 1033 Ex- change aka Involun-

tary Conversion DSTs pro- vide replacement options for a property sold under eminent domain. Property owners initiating a 1031 Exchange often end up in that situation by choice after deciding to sell an investment property or business. But what happens when that decision to sell is out of your hands? That is the case when the government steps in to acquire a property by exercising its power of eminent domain. What is eminent domain? Eminent domain applies to situations where the federal, state or local government uses its authority to acquire private property for a public use or the greater good. Eminent domain has been around for decades with cases dating as far back as the late 1800s. It is com- monly used by government entities to assemble land to build infrastructure, such as roads, interchanges or airport expansion. The government also has been known to step in and utilize its powers of eminent domain to acquire property to pave the way for private sector development that will in some way poten-



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