Tax Policy, IRC 1031 and Politics – Part 2

In my last post, I provided a cursory explanation of the basic functioning of IRC 1031 and the rationale supporting the existence of such a provision. In this post I want to detail the benefits IRC 1031 provides to our overall economy, address the argument that this provision is a "loophole" and identify the present legislative efforts to eliminate the benefits it provides.

Recently, this important provision has come under attack from our elected officials on both sides of the aisle, in an attempt to pay for our massive federal government growth with very little consideration for the practical effect of such a change. The stated purpose of these legislative efforts is to increase federal tax revenue; though it is also probably rooted in the perception of the existence of tax "loopholes" and the malignment of this provision as benefitting only the rich. 

First, a loophole is defined as "an error in the way a law, rule, or contract is written that makes it possible for some people to legally avoid obeying it" Therefore, the statement that IRC 1031 is a loophole is akin to saying that the law is incorrectly written, or contains some significant ambiguity that allows persons to bypass the intent and purpose of the law. It is without question that IRC Section 1031 was intentionally drafted. It has existed for almost 100 years, and while it certainly has been re-drafted to clarify its treatment of various scenarios, describing it as unintentional, or failing due to errant language is without factual support. On the contrary, it exists to facilitate free markets without imposing the burden of taxation where people are not cashing out of their investments.

IRC 1031 is based on sound tax policy that facilitates a "free-market" by encouraging business and individuals to choose investments that are the most advantageous to their goals without imposing a barrier of taxation that might otherwise prevent such transactions. 

Further, the contention that IRC 1031 only affects the wealthy is an unfortunate mischaracterization that ignores the purpose of the statute. Since its inception in 1921, IRC 1031 has shown us many significant economic benefits that unquestionably benefit taxpayers at all economic levels. Some of these benefits are:

  1. It encourages investment in U.S. properties and assets due to its express restrictions.

  2. It allows a taxpayer to exchange business/investment property for like-kind property that would be more productive than property he or she owns.
  3. It allows a taxpayer to efficiently change geographic locations to respond to growing customer/business needs.
  4. It allows taxpayers to diversify or consolidate assets held for investment or for use in business.
  5. It allows a taxpayer to change investments to meet a change in business plan or lifestyle more suitable to the taxpayer's economic reality.
  6. It facilitates the existence of businesses that purchase and lease equipment which would otherwise be stymied by the effect of depreciation deductions on equipment, and significant gain that would result to taxpayers. 

Further, exchange industry statistics show that sixty percent (60% ) of properties that are exchanged through a 1031 exchange are valued at less than one million dollars ($1,000,000) and more than one-third (1/3) of the properties exchanged are worth less than $500,000.00.  Thus, the reality is that while you do have to own an investment property for IRC 1031 to benefit you directly, a lot of low to moderately valued property is exchanged. 

Further, given its significant use in modern businesses, the provision undoubtedly benefits both higher and lower income classes as it facilitates the continued operation of businesses. Thus, this perception of 1031 as a  "loophole" or the malignment of 1031 as a benefit for the rich is based largely in paranoia that is not rooted in fact. 

Likely, it is this point of view, and the frequency of its use that has caused our elected officials to target IRC 1031 for reform. As our federal spending increases, seemingly without limitation and reason, your elected politicians are trying to find new ways to pay that bill. One way they are currently seeking to do this is by eliminating or significantly restricting this critical tax provision which has been in effect since 1921. It is not mere speculation or hype that your elected politicians are seeking new ways into your pockets:

  1. Former Senate Finance Committee Chairman Max Baucus, (D, Montana) proposed completely repealing IRC Section 1031 in its entirety before he was appointed ambassador to China.
  2. On the other side of the aisle,  Representative Dave Camp (R, Michigan), Chair of the Committee on Ways and Means in the U.S. House of Representatives has released a proposed bill also eliminating 1031 after 2014.
  3. President Obama proposes places limitations on the amount of capital gains to be deferred. 

The reasoning or the purpose of such changes is simple - it is based on a goal of increasing federal revenue. Unfortunately, for the foregoing reasons, this goal will likely not be achieved by limiting IRC 1031 benefits; and in fact, will likely have drastic negative economic repercussions that will further slow our economic recovery.  

Given the significant proven benefits of IRC 1031, identified above, it seems more likely to reduce federal income tax revenue, slow down our already anemic economy and impose a significant and disproportionate burden on middle-class taxpayers.

First, astute individuals, businesses and business owners will simply stop engaging in such transactions to maximum extent they can afford to. These businesses will adapt to changes in the tax code and what we will see instead is a slow down of economic activity, because those businesses will be stuck with the property they own and loath to be taxed on relinquishing those properties. As a secondary but related effect, to the extent employers are limited in the growth of their business, this will impact their need to hire and retain employees. 

Second, in addition to the general slowdown, to the extent such a change does increase tax revenue with respect to real estate transactions (not an overall increase, but an increase due to the fact that such transactions are taxed) this effect will disproportionately impact the middle class. Wealthy people who hold such property for investment will simply choose not to sell property that they would otherwise be taxed on. On the other hand, the middle class individual - who may be significantly impacted by the recognition of income in selling the few or only properties it has to sell, will not be so situated - that taxpayer will be forced to sell in spite of the negative tax consequences due to the need for cash. Thus, in our short example above involving Business Z, and Town A, the owner will have significantly greater obstacles to gaining title to Property Z, and may be forced to remain on Property Y and suffer the consequences. Make no mistake - a loss or significant restriction of 1031s will have a much larger negative impact on the middle class than it will the wealthy.

In closing, I want to be clear that this is really is not a partisan issue, it is a tax policy issue. Unfortunately, it is being driven by individuals who are not relying on their constituents understanding the effect of the change as a whole, but who are relying on their constituents hearing a "sound bite" that makes them believe a goal is being achieved, or a wrong righted. Therefore, I encourage you to take the time to educate yourself about the tax policy being discussed right now, and to contact your local representative and congressman and voice your concern over this issue. Right now, America is in a critical rebuilding period. We need to encourage investment and growth  through real assets versus through credit or debt, and these policies will likely smother any growth that has occurred since 2008. 

Topics:  Income Taxes, Section 1031, Tax Loopholes, Tax Reform

Published In: Elections & Politics Updates, Finance & Banking Updates, Residential Real Estate Updates, Tax Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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