[WSBAPT] Q re 1031

Mon Feb 8 12:56:49 PST 2016

"Old and cold." The problem with the LLC is that a member interest is not "like kind."

Long ago I did a 1033 election and got a PLR. Different, the requirement there is the election must be made on an individual return. So we had all the partners distribute the real estate before selling it to the county in lieu of condemnation.  Later they acquired a substitute property and contributed it to the partnership. 

I would do some research, including PLRs, to satisfy your concern. I suspect you'll find something on point. 

John Sullivan

Sent from my iPhone

> On Feb 8, 2016, at 12:38 PM, Jennifer Sohn <jennifer at sohn-law.com> wrote:
> 
> It is. I'm not concerned about that requirement. The crux of my issue is that I am uneasy telling him that it is okay to do something right after closing that he could not have done at closing. Because of the "same taxpayer" rule, he can't purchase the replacement property through a multi-member LLC. He would have to purchase it individually or his living trust or a single-member LLC. If he couldn't have purchased it through a multi-member LLC at closing, I am uneasy telling him that it is okay to do it right after closing (i.e., transfer all the interests into the multi-member LLC right after closing). 
> 
>> On Mon, Feb 8, 2016 at 12:20 PM, John J. Sullivan <sullaw at comcast.net> wrote:
>> Its still being held for investment inside the LLC, not?
>> 
>> John Sullivan
>> 
>> Sent from my iPhone
>> 
>>> On Feb 8, 2016, at 9:00 AM, Mark Higgins <markthiggins at gmail.com> wrote:
>>> 
>>> There is a requirement that the replacement property be "held for investment."  You might do some research on this in a situation where the taxpayer already intends to transfer the property at the time he receives it.
>>> 
>>> Mark
>>> 
>>>> On Mon, Feb 8, 2016 at 6:16 AM, Jennifer Sohn <jennifer at sohn-law.com> wrote:
>>>> I see, thanks for the clarification.
>>>> 
>>>> Sent from my iPhone
>>>> 
>>>>> On Feb 7, 2016, at 11:25 PM, John J. Sullivan <sullaw at comcast.net> wrote:
>>>>> 
>>>>> I don't see the basis or incentive for trying to impose the step transaction doctrine or the new substantiality doctrine as long as the deferred 1031 transaction is "old and cold" when the 721 transaction is carried out. It just has to be the same person receiving the replacement property. What he does with it next is an independent transaction. 
>>>>> 
>>>>> John Sullivan
>>>>> 
>>>>> Sent from my iPhone
>>>>> 
>>>>>> On Feb 7, 2016, at 10:07 PM, Jennifer Sohn <jennifer at sohn-law.com> wrote:
>>>>>> 
>>>>>> Thanks. So, under 1031, even though my client could not have purchased through a family LLC, it is still okay to put his interest into a family LLC soon after closing? I just wanted to make sure that I avoid any step transaction type argument by the IRS. Would appreciate your thoughts on this.
>>>>>> 
>>>>>> Thanks,
>>>>>> 
>>>>>> 
>>>>>>> On Sun, Feb 7, 2016 at 4:51 PM, John J. Sullivan <sullaw at comcast.net> wrote:
>>>>>>> The RLT is a disregarded entity, so it doesn't matter if he or the RLT take title to the substitute property. 
>>>>>>> 
>>>>>>> Not so the family LLC. I would make sure the two steps are separate transactions. Maybe wait a months before contributing the new property to the LLC. All should do it at once so Sec. 721 treatment is clear. 
>>>>>>> 
>>>>>>> John Sullivan
>>>>>>> 
>>>>>>> Sent from my iPhone
>>>>>>> 
>>>>>>>> On Feb 7, 2016, at 4:38 PM, Jennifer Sohn <jennifer at sohn-law.com> wrote:
>>>>>>>> 
>>>>>>>> I have a client who is engaging in a 1031 exchange. He recently sold real property that he owned through his living trust. In purchasing the replacement property, my understanding is that he needs to purchase it through his living trust (because that is who sold the relinquished property) or through an LLC where the living trust is a sole member. He will purchase the replacement property with his children as tenants-in-common. 
>>>>>>>> 
>>>>>>>> Soon after the 1031 exchange, he is planning on setting up an LLC with his living trust and his children (the tenants-in-common) as members. Does this transaction (putting his interest into an LLC that is owned not solely by the living trust but also his children) affect the 1031 tax deferral? My understanding is that he would not be able to purchase through an LLC that has multi-members, so I am wondering if he is able to do that right after the 1031 exchange closes.
>>>>>>>> 
>>>>>>>> Thanks.
>>>>>>>> 
>>>>>>>> 
>>>>>>>> 
>>>>>>>> -- 
>>>>>>>> Best regards,
>>>>>>>>  
>>>>>>>> Jennifer Y. Sohn
>>>>>>>> Attorney at Law
>>>>>>>> (Licensed in CA and WA)
>>>>>>>> Sohn Law PLLC
>>>>>>>> 10900 NE 4th Street, Suite 1850
>>>>>>>> Bellevue, WA 98004
>>>>>>>> Tel: 206.617.7874
>>>>>>>> Fax: 425.732.9748 
>>>>>>>> Email: jennifer at sohn-law.com
>>>>>>>> http://www.sohn-law.com
>>>>>>>>  
>>>>>>>> Confidential. This electronic mail transmission and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please delete the message. Thank you.
>>>>>>>>  
>>>>>>>> Circular 230 Disclaimer. Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the internal revenue code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
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>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> -- 
>>>>>> Best regards,
>>>>>>  
>>>>>> Jennifer Y. Sohn
>>>>>> Attorney at Law
>>>>>> (Licensed in CA and WA)
>>>>>> Sohn Law PLLC
>>>>>> 10900 NE 4th Street, Suite 1850
>>>>>> Bellevue, WA 98004
>>>>>> Tel: 206.617.7874
>>>>>> Fax: 425.732.9748 
>>>>>> Email: jennifer at sohn-law.com
>>>>>> http://www.sohn-law.com
>>>>>>  
>>>>>> Confidential. This electronic mail transmission and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please delete the message. Thank you.
>>>>>>  
>>>>>> Circular 230 Disclaimer. Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the internal revenue code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
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>>> 
>>> 
>>> -- 
>>> Mark T. Higgins
>>> Mark T. Higgins, P.C.
>>> P.O. Box 57
>>> Darrington, WA 98241
>>> 206-491-2420
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> 
> 
> 
> -- 
> Best regards,
>  
> Jennifer Y. Sohn
> Attorney at Law
> (Licensed in CA and WA)
> Sohn Law PLLC
> 10900 NE 4th Street, Suite 1850
> Bellevue, WA 98004
> Tel: 206.617.7874
> Fax: 425.732.9748 
> Email: jennifer at sohn-law.com
> http://www.sohn-law.com
>  
> Confidential. This electronic mail transmission and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please delete the message. Thank you.
>  
> Circular 230 Disclaimer. Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the internal revenue code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
> _______________________________________________
> WSBAPT mailing list
> WSBAPT at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbapt
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