Under Code Sec. 1031, a taxpayer can make a tax-free exchange of property held for productive use in a trade or business or for investment. The exchange must be made for other property that the taxpayer will continue to use in a trade or business or for investment. Ordinarily, the exchange is made directly with another taxpayer who holds like-kind property. For example, an investor in real estate may exchange a building with another person who also owns real estate for use in a trade or business or for investment.
Another way to take advantage of Code Sec. 1031 is to make a deferred like-kind exchange, using a third person to facilitate the exchange. This can be advantageous when the taxpayer cannot find another holder of like-kind property to make a direct exchange with. The taxpayer identifies a third person to act as a qualified intermediary (QI) and enters into a legal agreement with the QI. The QI is not treated as the agent of the taxpayer. The QI acquires from the taxpayer the property that the taxpayer is relinquishing, and sells the property to another person identified by the taxpayer. As part of the transaction, the QI acquires legal title to the property and transfers it to the person buying the property.
The agreement between the taxpayer and the QI must provide that the taxpayer has no right to the proceeds received by the QI. Otherwise, the taxpayer would be in actual or constructive receipt of the proceeds. If this occurred, the exchange would not be tax-free.
To complete the deferred like-kind exchange, the taxpayer will identify other like-kind property that it wishes to acquire, perhaps from a fourth person. The QI will use the proceeds from the original sale to purchase the property sought by the taxpayer, again acquiring legal title to the property. Finally, the QI will transfer the acquired property to the taxpayer. The taxpayer’s transfer of the relinquished property and acquisition of the replacement property qualify as a like-kind exchange.