JF995: Defer Your Taxes with the 1031 Exchange!
You may have heard that you can defer your taxes that are due when you sell a property, also known as capital gains tax. That’s exactly what you are going to learn today! One of the difficult pieces of this would be finding an alternative property to defer the taxes. He’s definitely got the solution!
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Leonard Spoto Real Estate Background:
– Oversees sales and marketing operations for Asset Exchange Company
– Frequent keynote speaker and accredited course instructor on the subject of 1031 Tax Deferred Exchanges
– Presented his real estate and tax workshops to over 20,000 Realtors, lenders, title professionals & investors
– Based in San Francisco, California
– Say hi to him at www.ax1031.com
– Best Ever Book: Olivia the Pig
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Joe Fairless: Best Ever listeners, welcome to the best real estate investing advice ever show. I’m Joe Fairless and this is the world’s longest-running daily real estate investing podcast. We only talk about the best advice ever, we don’t get into any fluff.
With us today, Leonard Spoto. How are you doing, Leonard?
Leonard Spoto: I’m doing great, Joe. Thanks for having me on your show.
Joe Fairless: Yeah, nice to have you on the show, and looking forward to diving in. A little bit about Leonard – he oversees sales and marketing operations for Asset Exchange Company. He’s a frequent keynote speaker and accredited course instructor on the subject of 1031 tax deferred exchanges, and he’s based in San Francisco, California. With that being said, Leonard, do you wanna give the Best Ever listeners a little bit more about your background and your current focus?
Leonard Spoto: Absolutely. I’ve been doing this for about 15 years. We are a 1031 exchange accommodator. We work with real estate investors who are using section 1031 within the tax code to defer capital gains taxes. When you do an exchange, when you defer taxes on the sale of your investment property, you have to work with a neutral third party to facilitate the process, and that’s what my company does. We prepare all the legal documents that are required, we make sure that our clients are in compliance with the tax code, and we actually hold sale proceeds until the investor or our clients find a suitable replacement company to invest into. So we’re an accommodator.
Like I said, we’ve been doing it for about 15 years. We do all types of different exchanges, from really simple, standard delayed exchanges to more complex reverse and construction exchanges.
Joe Fairless: Let’s talk 1031 2.0, next level stuff. Let’s assume that our listeners know what a 1031 is and the main components to it… What can you tell us that you would tell more sophisticated people and educate them on topics as it pertains to 1031s?
Leonard Spoto: There’s a few things, kind of next-level 1031 exchange stuff… Like I said, either standard delayed exchanges, one of the things that we work with most of our clients on where they sell a property and then buy a replacement property in that order. But as you and your listeners probably, right now one of the biggest challenges in the real estate market is finding good, suitable replacement property. I don’t care what market you’re in, whether it’s here in the West Coast or where you’re sitting on the East Coast, Joe, there’s just not a lot of inventory and the good properties are getting gobbled up quickly. So one of the challenges that a lot of our investors have is if I’m gonna put my property up for sale and I’ve got a limited time to reinvest, I may not want to actually sell because I might not have enough time to find a suitable replacement property within that very tight timeframe. So a lot of our more sophisticated investors are asking us about what’s called the reverse exchange.
The reverse exchange allows an investor to buy a replacement property first. As the name implies, you’re doing an exchange, but in reverse. You’re buying a replacement property first, and then you have 180 days to sell; provided that property sells within 180 days, that sale will be tax deferred.
Now, these exchanges aren’t for the beginner investor, they’re not for the unsophisticated first-time investor because they are a lot more challenging. When you do a reverse 1031 exchange, you can’t actually own the new property that you plan on buying AND the old property at the same time. An exchange is going from one to another; you can’t just go out and buy something and call that a reverse.
With a reverse exchange, we actually become the buyer for you. We are signing your contract, we become the buyer for that property, and we warehouse the purchased property until you can get yours sold.
Joe Fairless: You become the buyer for the property that I’m going to buy?
Leonard Spoto: Yes.
Joe Fairless: Okay. Do you put up the funds to buy the property that I’m going to buy?
Leonard Spoto: Yeah, good question… We don’t. I’m not in the business of giving you money and buying property for you, so what happens is… Think about it – you haven’t sold anything, right? And you don’t necessarily have that big pile of cash that most exchangers have, because the building you wanted to sell hasn’t sold yet. We do not buy the property for you with our cash, you’ve gotta do it. And the challenging thing about reverse exchanges as well is, let’s say you do have enough for a down payment on the property you wanna buy. So you’ve got $200,000 in your piggy bank and you’re gonna go out and buy a million dollar property. You plan on getting a loan from a traditional lender like Wells Fargo or Bank of America, and then you tell the lender “Well, by the way, I’m gonna borrow $800,000 from you, but Asset Exchange Company, the 1031 exchange company, is gonna be the buyer.” You can imagine how that goes over like a lead balloon in the underwriting department at that bank.
So getting a loan on a reverse exchange is tough, so most of the reverse exchanges we do are with clients either paying all cash, clients using non-traditional lending sources like private money lenders, or if the seller of that property is willing to seller-finance the deal. If one of those things are available to a client, then the reverse exchange might be an option. And to be honest with you, 90% of the reverses that we facilitate are with clients who are just paying all cash. They’ve got a big, giant lump of cash maybe that they can use from the stock market or just a big piggy bank that they’re able to access, and they’re able to buy a replacement property without getting a lender involved. It’s an all-cash purchase, we become the buyer, we sit on that property as the owner until there’s sells. Once they get their property sold, then we transfer the new property to them.
Joe Fairless: That’s an interesting concept. What type of documents — I know you’ve got all the documents, so that’s why I’m curious… What type of documents do you have in place for your client and you? Because they’re putting up the money, but you’re the owner.
Leonard Spoto: Obviously, there’s a pretty lengthy agreement that we all sign, and we are the owner in exchange — as what’s called an exchange accommodating title holder, only it’s not in our interest to become the owner of that property for the long term. We’ve got a pretty iron-clad agreement that specifies that as the client completes the exchange by either selling their relinquished property or exceeding the exchange timeframe, which most of your listeners probably know is 180 days… When one of those two things occurs – either they complete the exchange by selling their property, or going beyond the 180 days, the property we are warehousing for them automatically transfers back to them.
So we’re not in the business of obviously owning property; we only go on title for the accommodation of the reverse exchange. In fact, when we are on title to that property, we also entered into a triple-net lease with the client who’s doing the reverse exchange, and that lease will give the investor (the exchanger) all the burdens and benefits of ownership. So even though I’m on title to facilitate the reverse exchange, if there’s tenants in that property that you were buying in the reverse, you are gonna deal with those tenants, you are gonna collect the rent from those tenants. If there’s leaky toilets, you’re gonna go out and fix them. I’m not in the business of managing those properties for you. We are only on title in name and only for that reverse exchange.
Joe Fairless: And only for 180 days, right?
Leonard Spoto: For only up to 180 days. Hopefully a lot less, because hopefully it takes you a lot less time to actually get your relinquished property sold.
Joe Fairless: So the reverse exchange would make the most sense if I have cash or access to cash via a private money lender or seller-financing, and I am concerned about finding a replacement property or I have identified my property, I need to buy it now, but I haven’t sold the property I’m exchanging it from.
Leonard Spoto: Yeah, that is correct. Sometimes people get forced into a reverse exchange. You did your homework, you got your property on the market to sell, you had a buyer that came in, the buyer looked great, so you went out and made an offer to purchase something. You got into contract to purchase, you’re gonna time it so that your sale closes today, your purchase closes tomorrow, but then all of a sudden, that buyer for the property that you are selling all of a sudden just disappears, they go away for whatever reason. Now you find yourself in contract to buy something, you thought you had a buyer for the property you’re selling, but that guy took off, so you’re forced into a reverse exchange – not an ideal scenario, but that is something that happens as well, where people find themselves in a reverse exchange.
Joe Fairless: Let’s talk about some stories that you’ve either experienced yourself or heard from others, where a 1031 didn’t go according to plan and it went sour. Can you tell us a couple stories of what you’ve come across?
Leonard Spoto: Within the last 3-4 years, the biggest reason why an exchange goes sour is because they simply can’t find a suitable replacement property in the timeframe. When you’re doing an exchange, if you sell a property you have 45 days to identify what you’re thinking about buying and a total of 180 days to purchase and close on that replacement property.
So the biggest challenge in today’s market is finding that property within those 45 days, because it has to be identified within 45 days. We’ve had clients who sold their property, went to Hawaii for 2-3 weeks to celebrate the sale, came back and said “Jesus, there’s nothing on the market. What am I gonna do?!” That’s just poor planning, and exchanges blow up all the time because people just fail to plan properly.
That’s one thing – you’ve gotta do your homework if you’re gonna get into the 1031 exchange. There’s a lot at stake. My clients routinely have tax liabilities of hundreds of thousands of dollars; occasionally, those tax liabilities can get into the millions of dollars for some of our big clients… So if you are not doing your homework, you’ve got a lot at stake if the exchange fails. The government’s gonna come in, and in high states like California where we operate out of, you’re looking at about a 33% effective tax rate between state and federal government. Like I said, it can be hundreds of thousands of dollars, sometimes millions of dollars for our clients. So the biggest mistake some of the clients make is just not planning properly.
Now, there are occasions where people plan properly, they know what they’re gonna buy, they go out, they get into contract on something within the first 45 days, but then of no fault to themselves are not able to purchase something… Whether the deal falls through, maybe the financing falls through… Those are somewhat unavoidable, but in those cases what we always counsel our clients to do is have a backup. You’ve got your first choice, you think it’s a slam-dunk, but it’s always smart to identify a backup property, do some research, find out what else is on the market that might be a suitable option if your number one choice does not come through. Have a backup.
I’ve seen clients who just don’t do that. They only nominate one property on day 45, they’re already in contract on it, they think it’s a slam dunk, and then something happens. So it’s always good to make sure you’ve got a backup there.
Joe Fairless: And just a point of clarification… Do the 45 days run concurrently with the 180 days?
Leonard Spoto: Yeah. Day 45 is within the 180 days. You close escrow on your sale – that’s day zero. The first 45 days are what’s called “the identification period.” On day 45, no later than midnight of day 45 you have to submit your identification letter, stating in an unambiguous manner the properties you’re considering acquiring, and then you’ve gotta purchase and close on at least one of those within the total 180-day period.
Joe Fairless: Obviously, once our property that we’re selling is under contract, and maybe even a little bit before if we put it on the market, then we should be identifying the property; that way we’re not tightening that window unnecessarily.
Leonard Spoto: Absolutely. One of the things that my clients do, especially on the bigger deals, is they will get into contract to sell – you’re gonna sell a five million dollar apartment building, you’re gonna close escrow, and that triggers the timeframe, the beginning of your exchange. Some of my more sophisticated clients, they will work with the buyer to have a flexible close of escrow date. So instead of closing in five days with the all-cash buyer from overseas who’s anxious to get ownership of this property, they say “Yeah, I’ll sell you this property, but I don’t wanna close in five days. In fact, I want to close in 30 days with the option to extend another 30 or even 60 days, so that I have time to find that replacement property for my exchange.”
Joe Fairless: Does your company get compensated more if it’s a higher price point for the property that is being exchanged?
Leonard Spoto: Good question. No, we don’t. We just charge – and most exchange companies throughout the country are like this – a flat fee on the sale side and a flat fee on the purchase side, and the exchange fees are really reasonable. Our company has $750 on the sale and then $250 on the purchase, so most of our clients are selling one, buying one, and they’ll simply pay a $950 fee.
Joe Fairless: Obviously, you all must make money another way. I”m guessing that it is by investing or making dividends on the money that’s sitting in the exchange account?
Leonard Spoto: We are not allowed to actively invest funds; the funds have to be held in a cash-equivalent account, so that is a money market account. We currently keep the float on those funds as part of our fee. In higher rate environments, 5-7 years ago when money market accounts were yielding 5%, that yield was split with the client, but right now it’s less than 1%, so the entirety of that yield is taken as part of our fee as well.
Joe Fairless: With the exchange, is there anything else that we haven’t talked about that’s 2.0 level that you wanna mention?
Leonard Spoto: With some of the more sophisticated investors, one of the biggest issues right now is what we call in our industry a “drop and swap.” Many times investors will pool resources to go out and buy a large property. Let’s say you’re gonna buy a ten million dollar apartment building… Very few individuals will just do that on their own; they’ll typically bring on partners. And when you bring on partners, if you form an entity to own that property, such as an LLC or a partnership, it’s very important when you sell that property that the taxpayer who’s on title is the taxpayer that does the exchange. So if you have a multi-member LLC, the LLC will become its own tax-paying entity. The LLC is actually the entity that’s selling the property and the entity that’s eligible to do the exchange. So LLC will sell the property, LLC does an exchange and LLC has to buy the replacement property to complete the exchange.
Now, that works well provided the members of the LLC all wanna go forward together. Now, 9 times out of 10 though, when a property sold after X number of years, a lot of the members will wanna take some cash, do their own thing… It’s very rare that all the members wanna go forward together after X number of years of owning a building together. But what happens is you can’t go out and just take your cash and do your own exchange if other people are gonna pay taxes, because you don’t have several taxpayers on the title, you only have one – an LLC.
So one of the big issues with our more sophisticated clients is planning for an exchange a year or two prior to the actual sale. You’ve gotta get that LLC off title, you’ve gotta get the individual members of the LLC on title as tenant in common owners, so that they are taxpayers on title to the property, so that when it comes time to sell it, they can take their proceeds and exchanges their own taxpayer, or pay taxes, if they so choose. So planning on an exchange a year or two in advance is gonna be very helpful, because what you don’t wanna do is get an escrow to sell a property and be ready to close in two weeks, and all of a sudden learn that some of the members wanna cash out and pay taxes and some of the other members wanna do an exchange, because then you’ve got a big problem.
Joe Fairless: That makes sense. The drop and swap is referring to the switch from the entity that was previously to tenants in common, correct?
Leonard Spoto: That’s correct.
Joe Fairless: Another way to do that – to simply buy out the members in the LLC’s ownership interest and then allocate accordingly for whatever they would pay in taxes…?
Leonard Spoto: Yeah, you could do that. So if you have an LLC that owns let’s say a five million dollar building and you’ve got one member who doesn’t wanna do an exchange and several who do, the people who do want to exchange could simply buy that guy’s shares of the LLC. That would be a taxable event, but it gets the non-exchanger out of the deal, and then the rest of the group can then go forward with the exchange… That is another way.
Now, a) you’ve gotta have the funds to be able to pay that guy out, so if liquidity is an issue, that might not work. But the other thing is that now you also still have an obligation to replace the full value of the exchanged property.
Joe Fairless: That LLC is still on the hook for 100% of the taxes, even though you bought someone out.
Leonard Spoto: Exactly. So the LLC eventually, if it does cash out, is still on the hook for 100% of the tax liability.
Joe Fairless: Based on your experience as a 1031 exchange expert, what is your best advice ever for real estate investors?
Leonard Spoto: Plan. Especially in today’s market, due diligence is important, doing your homework is very important; building the right team to support you during the process is very important, so planning, planning, planning. You only have a window of 180 days to get these deals done. And as I mentioned, inventory is tight all over the country, so the sooner you start planning for your exchange, the higher chance that it will be successful.
Joe Fairless: Are you ready for the Best Ever Lightning Round?
Leonard Spoto: I am.
Joe Fairless: Alright, let’s do it. First, a quick word from our Best Ever partners.
Joe Fairless: Best ever book you’ve read?
Leonard Spoto: Best ever book I read? That’s a tough one… I’m gonna have to pass on that, I can’t think of anything off the top of my head. [laughs] I’m sorry, Joe… The only books I read right now – I’ve got a two-year-old and a five-year-old, and the only books I read are Olivia The Pig and Humpty Dumpty, so we’ll go with Olivia The Pig.
Joe Fairless: I’m going to include that in the notes… That’s probably the biggest smile that I’ve had on my face while typing the book that someone says. Olivia The Pig – alright, done. Best ever way you like to give back?
Leonard Spoto: We donate to a couple of really good causes that are near and dear to our heart. Hydrocephalus Foundation is one of them, and the Ronald McDonald Fund.
Joe Fairless: What’s a mistake you’ve made on a business transaction or just in business in general?
Leonard Spoto: Not effectively communicating. You think everybody is on the same page, and this just happened to me the other day, where you think everybody is on the same page, but they’re not… So aligning everybody’s goals and making sure everybody understands the goals and making sure that you understand what you think your partners are gonna be doing.
Joe Fairless: Where can the Best Ever listeners get in touch with you?
Leonard Spoto: Two ways – telephone is 877 471 1031, and then we’re on the web at ax1031.com.
Joe Fairless: I’m a big fan of your phone number.
Leonard Spoto: It’s easy and it’s appropriate.
Joe Fairless: [laughs] Well, Leonard, thanks for being on the show. We went over a lot of information in a very short amount of time, and that’s exactly how I like to do it. You were really informative, from drop and swaps, which pertains to my business (multifamily syndication and large deals, as well as other syndications) and reverse exchanges, which is a potential solution to not finding the replacement property in time; do the reverse exchange… Gotta have access to cash, and you need to plan accordingly if you aren’t gonna be within that 180 days. And the plan-plan-plan advice that you have – that’s pretty straightforward and it’s something that we need to pay attention to the business model in advance. That way something like a 1031 exchange where we don’t find a property – that doesn’t happen because we’re planning and preparing prior to that. So thanks for being on the show, I hope you have a best ever day, and we’ll talk to you soon!
Leonard Spoto: Thanks a lot, Joe. Thanks for having me.