States That Do Not Recognize 1031 Tax Exchange
By Rick Halperin
This article looks at states that do not recognize 1031 tax exchange. While Section 1031 is part of the United States Internal Revenue Code (IRC), it is important to know whether the same rules apply to State taxation for those states that have income taxes. Some states simply follow the rules of the IRC, while others have completely separate set.
While IRS Section 1031 allows any US investment or business real property to be replaced tax free with any other investment or business real property anywhere in the United States, there are states that do not recognize 1031 tax exchange. These states only allow an exemption from State taxation if the replacement property is located in that same state. If the proceeds are reinvested into property located outside of that particular state, it will be considered a taxable event and state income tax will be payable.
Besides costing investors the State taxes, this will also require them to keep track of a separate higher cost basis for the replacement property for State tax purposes than is to be used for Federal taxes.
Currently, it is our understanding that the only two states that do not recognize 1031 tax exchange (Georgia and Mississippi) will only honor the tax free status of a 1031 exchange if the replacement property is also located within their borders. Rules do change, so double check with the State tax authorities.
For the other states that do recognize a 1031 exchange, and do allow capital gains that had accrued on their properties to be rolled over into other states, they will expect the deferred taxes to be paid if and when the replacement property is disposed of in a taxable event. But in practical terms, this hardly ever happens because honestly, most times investors aren t telling, and more importantly, states aren t actively pursuing that information. Still, you would hate to be made the test example.
Finally, some states also have different rules, including special tax withholding requirements, applying to sellers of in-state properties who are not residents of those states. The list includes California, New York, and Maryland.
In summary, to ensure a smooth exchange, it is important to be aware of those states that do not recognize 1031 tax exchange. Also, it is critical to review the specific rules of the states in which both relinquished and replacement properties are located well before a deal is scheduled to close. This will ensure consistency with particular state rules including that the proper amount of taxes are withheld from the exchange, if necessary.
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