HR, you’ve got too much free time! 
- Posted by ray@lcorn
Posted by ray@lcorn on March 07, 2001 at 18:18:16:
HR,
I’ll bet you’ve heard me repeat my CPA’s standard comment to my latest tax idea. After hearing me out, he says, “Ray, if you can think of it, odds are the IRS has too.” Sad to say, most of the time he is right, though I have won a couple over the years.
In your scenario, I think that statement applies. This sounds like the kind of thing that runs through my own mind late at night, usually when I should be sleeping. Or the shower… can’t count the number of great ideas that come to me in the shower.
Subject to being overruled by the guys that practice this stuff for a living, like JHyre or the Baze, (you know I’m not a lawyer, didn’t ever want to be one, and still don’t, so this is not legal advice… yada, yada, yada) I think your scenario falls under the related party exchange rules of Sect. 1031. I’ve got an article in my files written by an expert in the field that speaks to the point of issue. Although the cite involves true related parties, a mother and son, at the end of the article there is a side bar that pulls in partnerships (as LLC’s are considered by the IRS)and corporations.
The article is reprinted here, with attribution:
1031 exchange by buying property from a relative
By Gary Gorman,
Professional Exchange Accommodators, L.L.C.
A recent IRS Ruling will now reduce taxpayer flexibility when they complete a 1031 exchange by buying property from a relative.
To be clear, there are two types of exchanges involving relatives. In the simultaneous type you trade deeds. Section 1031 allows you to swap properties tax free with a relative provided both of you then hold the property you receive for at least two years.
In the deferred type of exchange, you sell your property to a third party and use the money to buy your relative’s property. Section 1031(f) prohibits such a purchase unless you can prove to the IRS that you had no motive to avoid tax. The new ruling pertains to this deferred type involving a relative.
Prior to this ruling, many exchange professionals assumed that the “no tax avoidance” exception meant that if a related seller of the replacement (let’s call it the “new”) property pays tax, or is able to sell the property without tax, then you could buy from them even if they are related. So for example if your brother is selling you a house that he owns, and would have no tax liability because he is selling it at a loss, it was felt that your purchase of the property would be allowed because there is no tax avoidance. Ditto if it was his personal residence and the gain is excluded or if your brother merely declares the gain and pays the tax.
The new ruling makes it clear that the IRS sees the purchase of the new property from a related party in a deferred exchange as a violation of the prohibition against deferred related party dealings.
In the Technical Advice Memorandum issued as Private Revenue Ruling 9748006, a son sold an undivided interest in bare land and immediately purchased a residence from his mother. The mother had purchased the residence just prior to its acquisition by the son and had no taxable gain on the sale. The son used a number of arguments making his case that the exchange should stand, the most prominent of which was that there was no tax avoidance in the transaction because the mother had no gain. The IRS disagreed and ruled that the purchase violated Section 1031(f) because the family unit (i.e. the mother and son) ended up with both the house and the cash in completion of the exchange.
One of the sons’s other argument was that because he had used a qualified intermediary to handle his exchange; he had purchased the new property from the qualified intermediary, who was not related, rather than from his mother. Since the acquisition of the house from the mother happened simultaneously with the sale of the land, it seems that the only use of the qualified intermediary was to insert an unrelated party between the son and the mother. The IRS stated that the use of a qualified intermediary would not correct an otherwise flawed transaction.
This is the first ruling the IRS has issued concerning deferred related party replacements in a 1031 exchange. It makes it clear that the Service intends to narrowly apply the tax avoidance exemption allowed by 1031(f) in all cases except a direct swap of property. And it imposes a new rule of thumb that might simply be stated as follows:
“If the buyer and the seller are related, and one of the parties ends up with the property and the other ends up with the cash, the exchange will be disallowed”.
As with many IRS rulings, it raises more questions than it answers. Most obvious is the question of “what situation would give rise to a ‘no tax avoidance’ situation”. The ruling is also not clear about what the son intended to do with property. The implication I got from reading it was that the son intended to rent the property to the mother. The IRS did not address that issue. And most interesting to me was the fact that this transaction was in effect a reverse exchange since the new property was acquired for the taxpayer before the taxpayer had closed the sale of the old property. No mention was made of that fact. Very interesting indeed.
Side Bar - Who is a “Related Party?”
Related persons are tightly defined by the IRS in Sections 267(b) and (c). Below is a brief summary of the definitions. If you have a relationship that is similar to those below, but not mentioned exactly, you should consult your attorney or your CPA to make sure you are not defined as related parties:
Member of your immediate family (e.g., an individual and his spouse, siblings, parents, children);
An individual and a corporation, partnership, estate or trust in which they own, directly or indirectly, more than 50% (by value) of the stock;
Two corporations which are members of the same controlled group;
In determining indirect ownership, an individual includes only his brothers and sisters, spouse, ancestors, and lineal descendants.
The IRS construes these rules very exactly. For example, if you own exactly 50.00% of a corporation you are not related; if you own 50.10% you are.
Me again…
My take on this is that there is no way two LLC’s you own and control would not be considered related parties, and though I will admit that I didn’t quite follow your whole chain of thought, if you can’t get past that the rest is moot. I must also mention that my understanding of IRS procedure is that Private Revenue Rulings are not law, and the Service is under no obligation to be consistent in applying a PRR from one case to another. Bit my advisors tell me that you ignore them (PRRs), and use them, at your own peril.
If you do get past that, maybe through fractional ownership, then LLC A still has the problem of not trading up in both equity and debt. The $10T difference in mortgages would be considered boot, and taxable to LLC A. You can fix that problem I’m sure, if the other questions are satisfied.
Then there’s a problem of constructive receipt of the funds. As is cited in the case above, in effect one person, you, is winding up with both the property and the money, which is strictly taboo.
Finally, you did not mention using a QI (Qualified Intermediary), and even if all the other problems go away, and especially if they don’t, and you were determined to do it anyway, (which I know isn’t like you), I would use one. But heed the warning above: “The IRS stated that the use of a qualified intermediary would not correct an otherwise flawed transaction.” To me that means that the transaction itself must be fundamentally sound. Window dressing won’t overcome a cracked foundation.
All this is just one middle-aged dirt merchant’s opinion… I wonder if the tax guys will show up to comment, this being their high season. Be interesting to see another take.
Can’t wait to see you in Atlanta… I’ll be in sometime Thursday as well. I know where to find you!
Happy trails,
ray
