What is a 1031 Rule: Tax Deferred Exchange in Real Estate & Homes

Simon Misiewicz

Expat & Property Tax Specialist

9th March 2022

Withholding Rules Under FIRPTA

If you’re a non-citizen or a non-resident of the United States and you own or want to sell property, there are some complicated tax regulations that you need to consider.

It’s essential to know these rules before investing in U.S. real estate. While people might not tell you about these laws, noncompliance penalties exist.

The first thing to note is if you’re a foreign person who is not a tax resident of the U.S. that sells real estate in the country. You’ll need to remit 15% of the sales price to the Internal Revenue Service (IRS) under FIRPA withholding rules.

The IRS administers and enforces internal revenue laws. They make sure all taxpayers are complying with U.S. tax laws.

Similarly, the IRS makes sure you pay your fair share of the taxes owed after buying real estate property in the U.S.

Tax Example

Let’s look at an example. If you sell U.S. real estate for $500,000, but the basis for the property is $300,000, the gain would be $200,000. Under FIRPTA, the withholding that’s required would equal to 15% of that $500,000, or $75,000.

When you eventually file your tax return, you’d report a gain of $300,000. If the 15% tax applies to that gain, you’d only owe $45,000 in taxes. That means you get about $30,000 in tax returns.

See how much FIPTA tax you must pay to the IRS using our tax calculator.

Exceptions to Withholding under FIRPTA

There are some withholding exceptions under FIRPTA. One of these exceptions is when the sales price for your property is $300,000 or less. The buyer also has to sign an affidavit saying they’ll use the real estate for personal use about 50% of the time over the next two years.

Another exemption is when the property is between $300,000 and $1,000,000, and the buyer fulfils personal use requirements. In this case, the FIRPTA withholding rate can reduce to 10% instead of the regular 15 or 20.

If we think back to the previous example, this means the withholding would be about $50,000 instead of $75,000. Your expected refund then would be about $5,000 instead of $30,000.

Reduced Withholding

You can also apply for a Reduced Withholding Certificate. An application calculates your estimated gain and tax, and you request that your withholding be equal to the tax calculated.

You have to submit this application on or before the day of the closing with all the correct calculations. The regular rate of FIRPTA withholding remains in an escrow account while the application is processed.

It takes about three months for the IRS to process the application. The withholding will then be paid to the escrow account, which you’ll receive.

To apply for this, you will need a taxpayer or employer identification number. Without these, the IRS won’t process your request.

What is a 1031 exchange? Tax deferred exchange rules that saves British people tax when selling US property (not US homes)

Many of our clients ask, “What is a 1031 exchange?” when we discuss tax deferral tax op[[ortunities to sell real estate property as an investment.

Another important factor for selling real estate in the U.S. is the 1031 exchange rules. This is essentially a swap of one investment property for another tax deferral refers to capital gains on the 1040 tax return reported to the IRS.

The reason why a 1031 is considered a tax deferred charge is that you may have top pay tax if you later sell the exchanged property. Many real estate property investors will continue to exchange property to continue the tax deferred charge.

If you meet the requirements for a 1031 exchange and tax deferral, you’ll pay little to no tax at the time of the exchange.

Capital Gains When Selling U.S. Real Estate Property

A capital gain is an increase in a capital asset’s value that’s realized once sold. Assets include property. Capital gains might occur in the short or long term. You need to claim them on income taxes as well.

Capital Gains Tax Requirements

Capital gains kick in when you enter a contract to sell your property. You don’t need to pay any capital gains until a few things occur.

You won’t pay any capital gains until you’ve received the money from the sale. You’ll also be exempt until April 15th, when you file your 1040 tax return to the U.S. If you requested a filing extension using Form 4848, you have until October 15th to prepare your 1040.

Capital gains depend on a few different factors. The proceeds of your sales and the adjusted basis cost of the asset are essential. The capital gains tax will also differ based on the tax rates of different states.

The 1031 tax-deferred exchange rules to mitigate FIRPTA is one way foreign expats avoid paying taxes when selling residential real estate property and homes.

Capital Gains Tax Example and FIRPTA

Let’s look at an example of capital gains taxes for a property sale.

Say your income is about $80,000 a year. You sell a property for $300,000 with a $200,000 adjusted basis cost.

You gain about $100,000, and your capital gains tax is about $15,000 if it’s at 15% FIRPTA tax rate. There’s also a 25% depreciation recapture rate. If the property depreciates by $50,000, then you’ll pay about $12,500 in depreciation recapture.

If you add those up, you’ll pay about $27,500 in capital gains tax to the HMRC in the UK.

When does Capital Gains kick in?

Capital gains are made once you enter into a contract to sell the property in question. You do not need to pay  Capital Gains Tax until

– You have received the money (if you are taxed at the 15% FIRPTA tax rate, more on this later)

– 15th April When you file your 1040 tax return to the US and pay your liabilities

– 15th October if you have requested a filing extension using Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, which gives you six more months to prepare 1040 your tax return.

Mitigating Capital Gains and FIRPA Using 1031 Exchange rules

You can use a 1031 tax deferred exchange rules mitigate capital gains tax and FIRPTA. This is done by exchanging U.S. real property for other U.S. real property.

There is a misconception that a 1031 tax deferred exchange can help you avoid FIRPTA withholding altogether. In the past, sellers in a 1031 exchange only needed to notify their intent the buyer to relieve them of withholding requirements.

Current 1031 Exchange Rules Requirements

The current IRS regulations require you to do a few things.

You have to close the relinquished property while you purchase the replacement property. Boot, or non-like-kind property, is not allowed in the exchange.

As the seller, you also must tell your buyer that you’re not required to recognize any gains or losses. The buyer must also show the IRS that they met all the requirements within 20 days.

You can also file Form 8288-B as a non-recognition notice to the IRS if you plan on completing a 1031 tax deferred exchange. This can relieve you of FIRPTA withholding, but Form 8288 does take a while to process. A good understanding in of the 1031 exchange rules is required to take advantage of this essential legal tax avoidance.

1031 tax deferred exchange rules: Like for like exchanges to avoid FIRPTA and Capital Gains

It is possible to sell a real estate property investment and use the proceeds to reinvest in a new real estate property investment under the 1031 tax deferred exchange rules to mitigate FIRPTA. This is what is known as like for life provided:

– They sold property as a property investment

– The purchased property is a property investment

– The amount of money reinvested into the new property is the same or more (cannot be less, even by $1)

– Neither property may be classed as stock (to be flipped)

How many days do you have to use a 1031 tax deferred exchange rules? Understand the timelines to avoid a mistake

The 1031 tax deferred exchange rules specify that you only have 45 days from the point of sale to identify a replacement asset to purchase. There must be an agreement to buy the replacement real estate property investment, and documents are with a qualified intermediary.

Whatever tax you are looking to avoid must be reinvested in the property. If you sell a property for $300,000 and wish to avoid FIRPTA, you must invest the full $300,000 in residential or commercial real estate investments.

Let us imagine you sell a piece of real estate for $300,000 but only identify a property with $200,000 as a replacement within the 1031 exchange rules timeline. The $100,000 balance would be subject to the 15% withholding tax FIRPTA.

The property purchase must be completed within 180 days of the original sale date.

Failing to identify a replacement property/properties within 45 days and then complete the identified property/properties within 180 days will result in the 15% FIRPTA on money not re-invested.

Important recap: Please note for the 1031 exchange, you need to sell real estate investments, not flips or a home. You also need to reinvest the proceeds into residential or commercial real estate investments, not a home and not stock (property developments).

A step by step guide of how to use a 1031 Exchange rules and process

1 – Start selling a real estate property which is not a process of exchanging homes. The 1031 exchange rules do not apply to home sales.

2 – Work out if there are ways of mitigating FIRPTA without the need for a 1031 exchange if this is a risk

3 – Use 1031 exchange rules through a Qualified Intermediary

4 – Reinvest the money in a new investment property to mitigate both FIRPTA and CGT

5 – Consider the UK Capital Gains Tax implications of selling a US-based real estate if a UK resident

Albeit the 1031 exchange rules are effective in selling an investment real estate property, they cannot be used to exchange homes.

Feel free to use the FIRTA tax calculator to see what you may need to pay the IRS when selling a residential real estate property investment.

Why you cannot use the 1031 exchange rules when you exchange homes

There is a Capital Gains Tax home exclusion of $250,000 for single persons and $500,000 for married couples on any gains made. This means that s single person can make a gain on a residential property of $250,000 without paying Capital Gains Tax to the IRS when selling their home.

FIRPTA ignores the home exclusion and will remain calculated at 15% of the sales proceeds received upon selling the home. We must remember that FIRPTA applies to foreign expats no longer living in the United States (US). Anyone that lives in the US will not have to pay FIRPTA. As such, the 1031 exchange rules are unnecessary when you exchange homes.



 1031 exchange rules for tax-deferred real estate transactions, explaining what a 1031 exchange is, and showcasing how to exchange homes effectively


What does 1031 Exchange mean in the context of property investment?

A 1031 Exchange allows investors to sell one asset and reinvest the proceeds into another, without immediately incurring capital gains tax. The properties involved must be "like-kind" and held for investment or business purposes.

Who can take advantage of this tax-deferred transaction?

Eligibility is broad and includes individuals as well as legal entities like partnerships and corporations. The important factor is that both the property you're selling and the one you're acquiring are used for investment or in a trade or business.

What guidelines should I be aware of?

here are several important considerations:

The properties must be similar in nature.
You have 45 days to identify a replacement after selling your initial property.
You must complete the acquisition of the new property within 180 days.
The transaction must be facilitated through a qualified intermediary.

Can I use this strategy for residential properties?

Yes, but the homes in question must be investment properties, not personal residences. For example, if you own a rental property, you could exchange it for another rental or business-use property.

What are the consequences of not adhering to the guidelines?

If you don't follow the rules, the transaction loses its tax-deferred status. This means you'd owe capital gains tax on the sale, and you may also face penalties and interest.

Book a call to see how we can help you.


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