1935 FBF: 1031 Tax Deferred Exchanges & Overrated Opportunity Zones with Dino Champagne

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Communication has been just fantastic. And even after leasing a property, Platinum Properties is kept in contact to check everything's okay.

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Welcome to episode 1119. 1119. This is Jason Hartman. Thank you so much for joining me today as we discuss how income property is the most tax favored asset class in America. You know you get great tax benefits as you own the properties, but what about when you trade the properties, when you sell them and you want to rebalance if you will rebalance your portfolio. What? Well, you can do that for life with Income Property through the beautiful 1031 tax deferred exchange law. And I have done this many times as you've probably heard me discuss.

On prior episodes. I am just about to engage in another 1031 tax deferred exchange from a large apartment complex that I own with one of our clients and we are selling that and we do not know what we're going to buy yet, but we are going to be able to take all of our pre tax dollars and reinvest them. We can also split up and do our own things. We don't have to stay partners. There is just a ton of flexibility with this. It is a wonderful, wonderful benefit and you know, we haven't really done a show on it in a while. So I've got our guest today who is an expert and she will discuss that with us here in a moment. Make sure you have your tickets for the upcoming Meet the Masters of Income property in Newport Beach, California late March. And this is our 21st anniversary of Meet the Masters of Income Property. So we look forward to having you there. The room is filling up very, very nicely. We have quite a few ticket sales so far and we still have early bird pricing. So take advantage of that at jasonhartman.com/masters again. Jason hartman.com masters and let's go to our guest and talk about 1031 tax deferred exchange. Welcome to Meet the Masters of Income Property Investing. I am your host, Jason Hartman.

The 2019 Meet the Masters of Income property March 23rd and 24th in Newport Beach, California.

What is the sort of the one trick, the hack, the secret that really empowers people to success? Income Property, the most historically proven asset class in the entire world. Register today@jasonhartman.com Masters early bird pricing ends Friday, February 1st. Let's break this down and look at some of the stuff strengths of Income Property as an asset class. I found that this event is really helpful because I'm totally a newbie to real estate investment and so I picked up so much information. One of the great things about it is that it's so fragmented. Right. Embrace the fragmentation. Jasonhartman.com Masters it's my pleasure to welcome a returning guest back to the show. She has been a speaker at many of our live events over the years and our conferences. It is my friend Dino with API Asset Preservation Incorporated. They specialize in 1031 tax deferred exchanges and they've done a few for me over the years. Dino, welcome back. How are you?

Thank you, Jason. I'm doing great. How are you?

Good, good. It's good to have you. And one of the things I love about income property is it is the most tax favored asset class in America. There is nothing better when it comes to taxes. Not only do you get the tax benefits hopefully everybody listening already knows about, but when you trade it, when you sell it, you can defer the gain indefinitely through this section of the IRS, section 1031. That's why it's called a 1031 tax deferred exchange. And it is really a tremendous vehicle. Dino, give us some of the basics and I want to make sure we also touch on opportunity zones because, because these two things really do kind of mesh together a little bit. So talk to us about 1031 exchanges first, if you would.

Okay, very good. As you mentioned, it's an opportunity, not to be confused with opportunity zone. Okay. But it's an opportunity for a taxpayer when they're selling their investment real estate to go ahead and defer the tax to grow their wealth. And they can do this by exchanging property in one geographical area and then expanding it throughout the United States. So that is one of the wonderful. And as a 1031 facilitator, I'm seeing, like right now, a lot of individuals selling in one region and then redeploying it into different aspects, you know, different areas of the country. This is where someone can take the funds and then invest it in other areas that are going to grow faster maybe, or have better cash flow. When you're talking about doing a 1031, and I know that your investors are very familiar with the code itself. Just to remind folks that this may be new to them, in order to defer the gain on the sale of the property, there are certain rules and requirements that you have to meet. One is that you must have a qualified intermediary. And that's my role in all of this. I'll tell you, Jason, from time to time, what ends up happening is somebody will sell an investment property and they will have forgotten to engage the qualified intermediary prior to the closing of the sale. When that happens now, they have a full taxable event. And I'll get a call a week later saying, I'd like to set up an exchange I closed last week. At that point, it's too late. So as a requirement for the deferral of the gain, the taxpayer must engage a qualified intermediary prior to the closing of the sale property.

Let me just ask you one thing about that, Dino. Isn't there a reverse exchange where they actually can do that, or is that different?

Well, the reverse exchange, it's still a 1031. You're just doing it in reverse. And what that means is that you're closing on the replacement property before you have closed on the relinquished property. Now, when you're doing a reverse exchange, the taxpayer cannot be on title to both properties at the same time. So when somebody is considering a reverse exchange, I caution folks to make sure that they talk with a qualified intermediary well in advance of getting themselves in a position where they can only do a reverse exchange. Or that's the only vehicle available because of the planning aspects of this.

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The challenge with the reverse exchange is where is the taxpayer getting the funds to buy the property? Because we, as a qualified intermediary do not provide that money. We merely provide a. An entity where we're physically going to go on title to the property, but the party doing the exchange needs to come up with the funds. If there's a lender involved, it makes it very difficult in a reverse exchange because the LLC that we create is going to be the borrower, and we're going to require that the lender change language in their loan documents to accommodate us. And most lenders are not going to do that. So while the reverse exchange is available, more times than not, they're not doable, but because of the circumstances surrounding the transaction itself. So if you can avoid a reverse, avoid a reverse.

Okay, got it, got it. Okay, great. So go on with what you were saying before. I asked you about the reverse exchange.

Yeah, no problems once the property. So hopefully the individuals have engaged the qualified intermediary. The qualified intermediary is going to be communicating with whoever's handling the closing of the sale property. We're going to prepare documents. The documents are going to be signed by the parties doing the exchange when the sale concludes. So when the buyer brings in their funds, any closing costs, such as title commissions, escrow, transfer tax, qualified intermediary fees, those are going to be taken out. If there's any existing loans on the sale property that's going to be paid off, then the balance of the cash will be wired directly to the qualified intermediary in an exchange. Rule number one, or should say rule number two, taxpayer cannot touch their funds. It has to come to the qualified intermediary.

Right.

So that also triggers the time frame for the beginning of the exchange.

Okay, so talk to us about those time frames. 45 days and 180 days.

That's correct. But the 45 days is included in the 180 day period. And what's important to also understand, Jason, is that when we're talking about 45 and 180 days, they're not business days, they are calendar days.

Good to know. Good to know. That could easily. And really, folks, these deadlines are very, very strict. The IRS is not going to cut you slack for going a day over, are they?

No, there's no reset, redo, restart, do overs.

I sort of wonder, though, Dino, in the case of some natural disaster or something, if they have, I mean, throughout history, they must have cut some slack a couple of times, I bet. But no, maybe.

Yes, they have, actually. That's why that's one of the exceptions, Jason, is that if you're involved in a presidentially declared disaster, like the fires recently in California. Yeah. If you're involved in that, then you could potentially have an extension, but you already have to be in the exchange transaction. It's not something that if your sale hasn't closed, then you're not going to get an extension because you haven't. You're not in the transaction, in the exchange transaction itself. So there are times where you can have an extension based on a presidentially declared disaster. Okay, so I know the government shutdown is not a presidentially declared disaster.

Not yet, but it might be.

Okay, so, Dino, we kind of glossed over those numbers of days, though. And, you know, I referred to them, but we didn't really explain what they were. One is the identity, what's called the identification period, and then the other is the time in which you need to close the deal. Right. So just go over those real quick.

So once the escrow closes, that starts the timeframe. You have 45 calendar days from the date of closing to identify any property or properties that you would like to acquire as the replacement property or properties in the Exchange. After the 45 days, you have an additional 135 days to complete your purchase or purchases. So the exchange period from beginning to end is 100 calendar days. Very important to understand that once you have identified and you're now past the 45th day, you cannot change that identification. You can't add or take away from any of the properties that you put in on that list.

Right, but that's the hard part, the part that does make that a little easier. Not totally easy. They won't let you identify every property in the country, sadly. But you can identify more than you actually end up buying, right?

That is correct.

By what kind of address?

Okay, so there are three rules in identifying. You only get to choose one of the three. The most commonly used rule is the three property rule, where the taxpayer has the opportunity to identify three addresses. The dollar amount doesn't matter. So if you're selling, for example, for $500,000, you might identify one property. For 500,000, you might identify another one. For 600,000, you might identify a third. For 700,000, you can buy one of those three. Two of the three. All three of the three. But you're not required to buy all three properties, but you're physically limited to three addresses. So what we see, Jason, for when people are selling, for example, out here in Southern California and they're going to different states where the price point is a lot lower, in that situation, they may be able to use the next rule, which is the 200% rule. Under the 200% rule, you can identify four or more properties. However, when you add up the fair market values of those properties, it cannot exceed 200% of your sale price. So if my sale price is 500,000 and I identify five properties, then when I add up those five properties, they can't be valued more than a million dollars. And then I can buy whatever combination I need to make my exchange value.

Okay, now Dino, you know, before you finish, can you just kind of put a bookmark as to where you were? You know, we didn't at the beginning tell the listeners, and I'm kind of sorry we didn't how incredibly significant significant this is. Let's just pause for a minute and honor the huge significance of the 1031 exchange tax advantage because it's a beautiful thing. So remember, you trade the properties and you're investing with pre tax capital. So all of your money gets to go back in the game. Can you share an example of how much that might mean to an investor? Because if you sell a business or a stock or, or any other asset, you got to pay taxes on it and then invest what's left over. Right. With a 1031 tax deferred exchange, you get to reinvest the whole thing. Beautiful, beautiful. But I think you have an example as to how much that tax might be. And if you could share that, that'd be great.

Sure. In an example where somebody might be selling a property for a million two, that's kind of the example I use often for a million two. And let's say that their gain on the sale of that property because they've owned it for a very long time, might be $720,000. In that particular example, the taxpayer would be faced with tax bills somewhere around 200, say 65, $66,000. That state. And I'm talking, when I say state, I'm talking referring to California, that's state and federal taxes. So if the taxpayer had to earma 200 and say 60, I'll just use 65 for these. If they had to earmark $265,000 from the cash that they're getting out of a transaction, that means that's less money they have to put down on the replacement property. So let's just say that they have $600,000 of cash. If they had to earmark 265 for taxes, then that means they only have $335,000. If I can do the math in my head on the next property, however, if you're going to do an exchange. You can defer paying the tax, both federal and state. So now I have the full $600,000 that I can put down on the next property. So that's what we call the power of an exchange. I can do this until I pass away. I can exchange, exchange, exchange until I die.

And then what happens then?

At that point, until the tax laws change, my heirs would inherit the property and they would get a full step up in basis on the property.

Which means they don't have to pay any tax because it's now considered to be at the market value at time of death, right?

That's correct, if they're selling it closely after the passing and the valuation of the property. But also what's more important is they're not responsible for paying any of the tax. I've been deferring all the years ahead.

Wow.

So that tax is forgiven.

That's just incredible. Income property is the most tax favored asset class in America by a long shot, isn't it?

Mm, yeah.

Good stuff. Okay, Dino, back to what you were saying about the identification rule. If we're kind of done on that subject.

Yeah, we just pretty much covered it. I mean, when you're, when you're selling a high asset property and going into states where the values are going to be smaller or lower, then you might be using the 200% rule, and you can use it very easily. As an example, I had a client that did an exchange out of California and they identified 20 properties, ended up buying about 15 of those properties. But they gave them some flexibility.

We had a great one like that. They sold a property, a highly appreciated property that they had inherited. It was in Orange County, California, and it sold for, I believe, around two and a half million dollars. And I think when they came to our network, they bought 36 properties. So literally their cash flow went through the roof. I mean, it was unbelievable. And they didn't pay any tax, it was an exchange. So they got them all. I mean, just incredible, incredible opportunity.

And that's a fantastic example. And here's something just to piggyback on that a little bit, is when somebody does something like that and they bought 30 different properties, if they decided where they wanted to start incrementally cashing out for whatever reason, when you sell the one property, you're going to pay tax associated to that one property, not the other 29. So when you're spreading your wealth around, if you will, you can at some point incrementally cash out if need be. Where if you just bought one property and you want you needed to cash out, you'd be paying all the tax. So there's certain strategies to consider when you're selling investment property. What's my exit strategy? What's my game plan? Do I need cash flow? Maybe I need to cash something out at this point in time. So there's a lot of strategies. And I know, Jason, that you sit down with the folks and you deal with all of that and you help guide them through their investment strategy. So you're a good team member for them.

Well, I hope so. And we certainly appreciate their business and we can really, really help them. It's really amazing. I don't think we finished the identification rules, did we? The three.

The other rule would be the not yet. The other rule would be the 95% rule, which is unlimited properties, unlimited dollar amounts. But you better be prepared to purchase all of your entire list. So you want to stay away from that rule if at all possible. So the two.

You don't like that one, the two.

Feasible ones, property three property rule, and the 200% rule.

Okay, great. So the problem can happen here, and I'm sure you've seen this at your company fairly often, where someone can't close on all these properties, right? And something happens, and that's why you identify more than you're actually buying, right?

That's correct.

Yeah.

Very common.

You have a backup.

Right? Exactly.

Okay. All right, good.

Exactly.

Whenever we trust some other person or institution with our money, we're always at risk, aren't we? Your world of exchange accommodators is not very regulated, isn't it? Or is it? I mean, I didn't mean to say. Isn't it? There have probably been some scams over the years, haven't there?

Well, regrettably. I shouldn't say regrettably, but our industry from a federal level is not regulated. There are certain states that do have regulation, and the regulations vary from state to state. But regrettably, that's where the regrettably part I want to come in. There have been situations where qualified intermediaries either lost the funds or ran away with the funds. So when you're dealing with the qualified intermediary, sometimes I'll get a question. The first question on the phone call be, what's your fee? The fee should be. It's a fair question, but it probably should be somewhere down the third or fourth question that you might ask the qualified intermediary. The important thing about the qualified intermediary is what's Your security, who backs you? What's the financial structure of a larger company that backs you? How many of these have you done? Is this all you do? Are you an expert in this area, in this area alone? Because there are people that can. Anyone can be a 1031 qualified intermediary if you put out the right paperwork and you draft your own exchange documents. But that doesn't mean that you're keeping up with the tax law changes. It doesn't mean that you have any financial backing. Jason, if you decided to set up your own Qi tomorrow, God forbid something happened to you. What's happening to the funds, to the transactions you have going. So when you're doing a 1031, you want to look to security of funds, who backs them? How long have they been doing it, and what's their expertise in the field itself? And are they keeping abreast of all the changes that may be coming down in all court cases that, you know, that we can help the client to understand, to have the conversations with whoever does their taxes?

Yeah. And it's basically when someone sells their relinquished property, that money goes into your company's account. You know, I remember years ago when I owned an escrow company, that was a tremendous responsibility that I really do not want to ever have again in my life.

Because.

Yeah, I had millions of dollars in, you know, this account, and, gosh, that just really makes you lose sleep at night. But, you know, if I was a crook, I mean, you know, people, the escrow companies, they just run off with the money. Sometimes it's happened. I mean, I know someone that had happened to. And that money can just disappear. And that can happen with an exchange accommodator, too, can it?

It can and has. But I just want to clarify something. It doesn't go into our operating account. Okay. As for asset preservation.

Right. But it's a trust account, just like an escrow company.

You know, we're definitely. We are in control of the funds, but for the benefit of the taxpayer. So ultimately, it is the taxpayer's funds. But I just. I just wanted to clarify. It wasn't going into our operating funds. Okay, that completely separate.

But when I'm talking about the crooks. Right. You know, that money, I mean, trust accounts have been commingled. Trust money has been stolen. It's not something that's unheard of. So be extremely careful with the exchange accommodator that you choose, because this is a giant amount of money. Okay. You can have, you sell one property and maybe there's $500,000 in that account. Maybe there's two and a half million like in that story of our clients. You know, fortunately nothing happened. You guys did their exchange and everything worked out great. But if there's a crooked accommodator, boy, let me tell you, that could just ruin one's life. I mean, it's a giant amount of money there, right?

Yes, it is. And it's however much money we're holding for an individual, it's important for them. So I may hold $100,000 for one person and 100 million for someone else. And it's all relative, right?

So yeah, yeah, it is. Definitely, definitely. Well, good to know. Okay, so be very careful. There's a lot of fly by night companies out there, so be careful of that. With the new tax law.

Any big changes there for the 1031? Fortunately, we still have the 1031s for real property, the personal property. And when I qualify the term personal property, no more cattle, occasionally no more cattle, no more horses, no more Ferraris or art. Okay, so basically furnishings, fixtures, equipment, those types of things are no longer able to do a 1031. Sometimes when we say 1031 for personal property is no longer available, people think about primary residence. And that's not the issue here. That's a completely different tax code itself. So just basically real property. So if I'm working with somebody that's doing an exchange for a hotel, for example, there's going to be a combination of furnishings, fixtures and equipment along with the real property itself and probably the business opportunity and goodwill. You know, at one point you could do the exchange with the furnishing fixtures and equipment, but you can no longer do that. So the allocation, you have to know what the value is of the real property, the bricks and sticks, if you will, that's the portion that's going to be doing the exchange. So in the tax new tax code, we still have the real property. The personal property was not a huge percentage of what we did in exchanges. Very few people do those. But in comparison to the real property side of things. So beyond that, you know, we're pretty much, we're still good to go.

Okay, let's talk a little bit about opportunity zones for a moment. This is something that is way overhyped if you ask me. And basically what it does is it allows people to invest in these mostly blighted areas. They're not all that bad, but most of them are. Then they can improve properties there, do very substantial improvements. Spend a lot of money on upgrading these properties and wait up to 10 years, sell the properties and be exempt from capital gains. Now. And don't quote me on this, I'm not a tax expert. Which, by the way, is the disclaimer we should definitely make here. Neither Dino nor myself are tax advisors. Okay. So always seek out a competent professional in the field. We're just giving you the concepts to go to them with. But on the Opportunity Zone thing, they could just do a 1031 exchange and probably have a much better result. I mean, to me, Dino, that's just for people who want to leave the game of real estate, which I don't know why anyone would ever want to leave it. But. Okay, what do you want to say about Opportunity Zones and especially about these people out there promoting Opportunity Zone funds? You can't exchange into them, right? So I don't know. I just don't know what the big deal is. I don't think it's a very big great thing at all.

From a real estate perspective, if you're selling real estate, the one thing you cannot do is you cannot exchange into an Opportunity Zone fund. It's not. Doesn't qualify as like, kind property. The advantage, and some of the information out there is very, I don't want to say misleading, but the guidelines are still coming out on Opportunity Zones. So it's important to make sure that if anybody's considering an Opportunity Zone fund, that they definitely speak with their tax advisor to understand if they're going to benefit from this or not or something good for them to invest in. From the real estate perspective, you can't exchange into it. Now, there's some talk out there that if, if you have a failed exchange, this is one way to not pay the tax. The one thing I want to say that there's certain, if you're going to have a failed exchange, and it's if you're considering an Opportunity Zone fund to put the gain in, which is a different than what you have to do for an exchange, because in the exchange equation, you have to spend the G, you have to put the gain plus the basis into the next property. With the Opportunity Zone, it's only the gain that gets invested into the fund. However, if somebody sells real estate or stocks or bonds, because as you mentioned earlier on the podcast, that stocks and such, there's no deferral mechanism for that. So an Opportunity Zone Fund might be something more in line for them because they would have to pay the tax anyway, which is completely different than a real estate investor who has the option for doing a 1031 tax deferred exchange. So if somebody has a failed exchange and the exchange fails on day 46.

Which is one day past the 45 days.

Right. Because now we can release the funds, assuming they have no identified property, then they may, if they chose to, may put money into an Opportunity Zone fund. However, they're still going to end up having to pay the tax on that gain. It's just going to be 10 years later. And then any growth in that Opportunity Zone fund that's not going to be taxed, but the gain that was deferred or not taxed at the point will end up, they'll have to pay. So they're going to need to save their money or find out some way how they're going to pay that tax when it comes due because it doesn't go away. And the other downside to the Opportunity Zone is if somebody invests in an opportunity Zone and they pass away, there's no step up in basis. So opportunity Zone funds for folks that are a certain age group probably is not a good investment for them in that regard. You have to hold it for 10 years. So if I'm 75 and I've got a 10 year hold on my 85 and I pass away at 84, my heirs are not going to get a step up in basis where on the real estate side of things, they did.

Right. You'd be much better off simply buying your properties with a 1031 exchange or not. And then when you want to cash out, just if you want to get out of this properties, just do another 1031 or pass away.

Well, that's a permanent solution.

It's a good one. It works really well because the basis steps up. You know, hey, listen, it's going to happen to everybody. You might as well just come to terms with it, right? Where we all. It's going to happen, all of us.

Without question.

The Opportunity Zone thing just forces you into these blighted areas mostly. It's got so many complex restrictions on it. I just don't get it. Maybe I'm missing something, but I have gone around and around with this. I just don't think it's that great. I would easily be recommending it to our investors if I thought it was. And I reserve the right to change my mind. But so far I haven't seen anything that makes me want to, you know.

Well, it's definitely the new shiny toy on the shelf, that's for sure.

A few years ago it was cryptocurrencies and then it was airbnb and so far both of those have either flopped or are flopping. Okay. I just don't go for the shiny. I'm too old for that. I used to be that way and I just don't chase shiny objects. And I'll tell you something, Dino, this happened during the Go zone and I don't know how many people listening or if you remember the Go zone, right. That was the hurricane affected areas in the Gulf Coast. And at the beginning it was great because the properties, they didn't price in this artificial tax incentive. And at the beginning we recommended and I bought a bunch of properties in the gozone. So did our clients. We recommended it because we like it, but the prices rose so quickly because all of these promoters got out there promoting the tax benefits and the deals just didn't make any sense after a while. And so people were now overpaying for a tax benefit. But that tax benefit was actually much better than this one. This one isn't nearly as compelling as the gozone was. And what I always say is don't let the tail wag the dog. Don't let the tax benefits determine what you should buy. Your deal needs to make economic sense before tax benefits and then look at the tax benefit as the icing on the cake.

That's sound advice and you didn't address it, but I'll bring it up. Is the. When we're talking about the opportunity Zone, this is brand new. So if somebody's going to consider that you need to look at the, I'm going to call it sponsor for lack of the proper term, probably. But whoever's putting the fund together, right, that's the sponsor you need to vet. You need. Yeah, you need to vet the fund. You know, how long have they did, what's their experience in real estate and development? Do they have the capability to deal with any public private issues that may come up in these opportunity zones? There's certain amount of time that you have to spend the money in order for this to be viable. So if somebody's putting their money there, they have to understand they're not going to. In most cases, they're probably not going to get any cash flow for quite some time. So this is, you know, I don't see this as a cash flow play, at least not immediately. So, you know, you want to vet the sponsor like you would do anything else. And there's not a big track record in opportunity zones. So make sure that whoever you're maybe considering doing this with, had they done development before with what's their background in all of this. What's the financial backing? So just something to common sense.

Absolutely right. Good common sense. And you know, that goes back to commandment number three, thou shalt maintain control. That's part of my ten commandments. When you relinquish control to some kind of fund or pooled money investment, you might be investing with a crook, you might be investing with an idiot. Either way, you're going to lose money. Assuming they're honest and competent, they take a giant management fee off the top for managing the deal. And the way those fees can be buried into those fund documents is absolutely astonishing to me. You know, there's this little fee, that little fee, and those are the disclosed fees, the ones you don't see that we'll call them the soft fees are, you know, well, you got to take everybody to dinner and you've got to fly first class to go visit the properties and.

Or you've got to have a corporate retreat so your team can think about it all and just.

It's no good.

Yeah, well, I haven't looked at any documents, so I'm going to defer to your knowledge on that aspect of it.

It's a general statement. I'm not talking about any one promoter or sponsor. It's just a general statement on funds in general and not even opportunity zones. Just a general comment, but Dino, this is always very enlightening. This is a wonderful tax advantage. The 1031 tax deferred exchange. You don't need an opportunity zone. You just need a 1031 tax deferred exchange and good quality properties. That's what I would say. Give out your website and tell people where they can find you. You.

Our website is apiexchange.com so a as in Apple, P as in Paul, I as in ida and then the word exchange.comapie exchange.com.

Thank you so much for joining us today.

My pleasure. Thank you for having me.

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