Misinfo Monday - 1031 Exchanges

Last week was a little more "big picture" so today we are digging into a very specific real estate topic: 1031 exchanges and their possible elimination.

A 1031 exchange allows an owner of an investment property to avoid capital gains taxes by taking the proceeds of a sale and putting it towards another purchase. 

This has helped some small investors, but massive organizations have used a string of exchanges to defer tens (or hundreds) of millions of dollars in taxes that cities need for their budgets, especially now. And there is a renewed push to adjust or eliminate the option.

xo

Anna

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What’s The Deal?

1031 or "like kind" exchanges allow an owner to avoid paying capital gains taxes (20%) on the increased value of their home. For example, if you bought a condo for $100k and now it is worth $200k, you would owe $20k in capital gains taxes, but you could get out of it by putting the proceeds towards a new purchase. 

This has a few main conditions: 

1. It must be an investment (rental) property or a "productive" property (ie. farmland), and you must have a history of declaring/paying taxes on the income from this investment. 

2. You must identify three properties of interest within 45 days of selling your original property, and close on (buy) one of those three properties within 180 days.

3. Both the purchase price and the loan on the new property must be larger than the original (ie. a $1m property with an $800k loan for a $1.1m property with a $900k loan). 

Again, note that 1031 exchanges are only allowed on investment properties. Avoiding capital gains on your primary residence is simpler but more limited; I'll write something about that in the future!

Like kind exchanges have been around for decades, but have recently found the spotlight. In 2017, the new tax law eliminated this kind of tax-deferral exchange EXCEPT for in real estate transactions. Before that, companies were able to do "like kind" exchanges on everything from rental cars to farm equipment.

The 1031 exchange is a HUGE financial boon to real estate investors, and it isn't the only one. From Bloomberg: "The exemption is projected to save property investors $51 billion between 2019 and 2023, according to Congress’s Joint Committee on Taxation. It’s not the only benefit in the tax code that primarily favors property investors. Real estate developers can claim write-offs for losses on borrowed money. They also get to claim depreciation on buildings, which, unlike farm equipment or factory machinery, generally increase in value."

While I know some small investors who would benefit from the 1031 exchange option, many of the NYC beneficiaries are billionaires with massive portfolios. These types of exchanges aren't necessarily easy or straightforward, so the savvier investors tend to be the ones utilizing them. Said investors already take advantage of every loophole mentioned above to lessen their tax burden, as is their right. But with all their other options I'd argue they don't need this one.

Why Does This Matter?

1031 exchanges have made headlines recently for two reasons:

First, in June the Trump Organization discussed selling two properties in NYC and SF for roughly $2billion. These buildings were purchased in a like kind exchange with proceeds from an earlier UWS sale. His position in government could make using these proceeds for yet another 1031 exchange difficult, and if the exchange doesn't happen the organization would owe tens of millions in taxes. 

Second, Biden recently proposed eliminating the 1031 for real estate the way Trump's administration eliminated it for all other businesses. Of course certain people in real estate (like reason I just quit Equinox Stephen Ross) are yelling about how this is unfair, but again, it was Trump's administration that dismantled the program. Biden would simply be finishing the job. 

We as a country will need to make some tough decisions over the next few years to undue the damage the GOP and coronavirus have done to our finances. No one is excited about paying higher taxes and most of us are already hurting financially, so closing loopholes and funding the IRS so it can actually go after companies/individuals avoiding their fair share may be our best bets. 

Further Reading/Watching

To read more about 1031 exchanges and other ways real estate moguls avoid taxes please check out the links below.

Bloomberg - What Is the Like-Kind Exchange Rule That Biden Wants Dead (article)

Pro Publica - Here’s How Trump Transferred Wealth to His Son While Avoiding the Usual Taxes (article) 

NY Times - How Loopholes Help Trump and Other Real Estate Moguls Avoid Taxes (article)

WTF, NYC? - Mid-Pandemic Tax Lien Sale

UPDATE: At the 11th hour the sale was postponed.

I have long thought the answer to NYC’s housing crisis, which is increasingly becoming a nationwide housing crisis, is to make the path to home ownership easier. Our over-dependence on rentals, which stems from a larger issue of viewing real estate strictly as an asset class rather than a home, is unsustainable. If we keep going down the monopoly landlord conglomerate root we will be, to use an industry term, fucked. 

But what I find even more frustrating than how hard we make it for people to get on the first rung of the real estate ladder is how we then try to rip people off.  

A well-known example is the type of predatory lending that led to the ’08 housing and financial crisis. Buyers were duped into purchasing homes they could not afford, only to have them foreclosed on and lose their asset, savings, and having to rebuild their credit. Of course they made bad investments, but they did not know what they were getting into, because the lenders were acting irresponsibly. 

Another example that I’ve discussed before is the forcible taking of people’s homes, especially people of color, by burning them completely to the ground (see: Tulsa) or through legal government intervention (see: Seneca Village, Columbia’s campus expansion). 

But there’s another fun way that the government takes homes away from their owners: lien sales. The government will put a lien on your house if you don’t pay your property taxes, a lien if you don’t pay your water bill, a lien if you don’t pay the fines for any violations. Sure, I get it, makes sense in theory. But in practice it’s a huge problem for anyone who isn’t earning a ton of money who lives in an area where home values are increasing. Think about an owner who purchased their home 20 years ago and now lives on fixed income. Although they are likely making the same amount they were before, their tax burden has increased significantly with the home prices in the area. They may no longer be able to pay these taxes AND keep the home in good repair AND pay for all the other utility expenses. Once they get behind on payments there is little chance of coming back — you need to pay everything owed and any interest or late fees on top of it. The situation snowballs.

And don’t get me started on the fact that the hotel lobby has successfully blocked Airbnb from being allowed in the city. I understand the arguments against short term rentals, especially in buildings where you share walls with your neighbors, but you can’t have it all ways. You cannot simultaneously keep someone from using a completely legal service to help pay the monthly costs on something they own, keep raising their costs, AND on top of all this do nothing to fix wealth inequality. If you want to charge women of color who own homes the same taxes that you charge a white man who owns a home, then PAY HER THE SAME AMOUNT. Add to this other elements like racist appraisals keeping people of color from taking advantage of lines of credit or refinancing (or selling at the same price as a white neighbor) and you have a racist system that keeps home ownership out of reach. 

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So what de Blasio, unsurprisingly, is doing is auctioning off, in the MIDDLE OF A PANDEMIC, the homes of people who are already struggling to make ends meet. The auction is tomorrow, Friday, September 3rd. His justification, that the city just really needs that potential $50m right now, falls flat when you realize the NYPD budget is $11 BILLION and he just approved the budget with that number (despite all the lies claiming that the police were defunded a billion dollars). I truly do not understand de Blasio. He has managed to piss off every single person in NYC regardless of their beliefs. It’s honestly quite impressive. 

Here’s what the city’s website says about the tax lien sale: 

“When you do not pay your property taxes, water bills, and other charges against your property, these unpaid charges become tax liens that may be sold in a tax lien sale.

Each year, the Department of Finance sells tax liens. If your property has unpaid debt that qualifies for a lien sale, we will sell your lien debt (the amount owed) to an authorized buyer. A lien servicing company, on behalf of the buyer, adds more fees and interest to your debt, so it is much better to take care of your debt before we sell the lien.”

And who is going to buy these liens and add said fees and interest? Companies like Blackstone, that will then foreclose on many of them and turn them into rentals. We will be removing more and more New Yorkers from the “American Dream” as we consolidate all our housing stock into a rental portfolio owned by a small handful of companies. Remember the game Monopoly? It was supposed to be a warning, not a playbook for how to run a society. What. The. Fuck. Is. Wrong. With. You. 

Dozens of elected officials have begged de Blasio to remove properties with fewer than 4 units from the sale, and postpone it until after the winter, when we expect to have a surge in COVID. Their please have fallen on deaf ears.

From Channel 11 News: ‘New York Attorney General Letitia James explained those companies can charge homeowners "mandatory 5% surcharges, legal fees and most of all a 9-18% interest rate that compounds daily.”’ 

You cannot come back from that level of compound interest if you already couldn’t pay the liens in the first place. This is forcing people out of their homes in the middle of a pandemic. I don’t have an answer for what to do. This is disgusting, and it’s more of the same.

"The outcome of this process is not a mystery: more New Yorkers, many of whom owned their homes outright or benefitted from significant equity, will lose their homes to foreclosure, depriving them of their single most valuable asset and dramatically destabilizing their lives," the letter states. "Others will be compelled to sell under duress during an undoubted drop in the housing market."

New York, we can do better. 

xo

Anna