What is “like-kind”?

The IRS takes a broad-scope approach to the definition of “like-kind.” Regulations clearly state that “all real property is like-kind to all real property.” Real property in the United States can be exchanged for real property in the United States. In addition to the 50 states are the U.S. Virgin Islands, Guam and the Northern Mariana Islands, if your property is subject to the Coordinated Territory rules of each particular territory. Ask us before starting down the path of an island property exchange! So, if you are selling a real property interest (your name or entity is on the fee title) you can look for any kind of real property as a replacement property.

There is a two-pronged test for properties to qualify for IRC §1031 tax-deferral treatment.

The Relinquished Properties must have been held by the Exchanger either for investment purposes or for productive use in a trade or business. The Exchanger’s purpose and intent in holding the property is the critical test. The use of the property by other parties to the exchange (Relinquished Property buyer or Replacement Property seller) is irrelevant.
The Relinquished and the Replacement Properties must also be “like-kind.” The term “like-kind” refers to the nature or character of the property, ignoring differences of grade or quality. For example, unimproved real property is considered like-kind to improved real property, because the lack of improvements is a distinction of grade or quality; the basic real estate nature of both parcels is the same. This is addressed in U.S. Treasury Regulation §1.1031(a)-1(b). Essentially, all real property in the United States is “like-kind” to all other domestic real property.

IRC § 1031(a)(2) specifically provides that real property held primarily for sale does not qualify for tax deferral under section 1031. Basically, no flipping.

Examples of qualifying properties that could be exchanged:

Raw land or farmland for improved real estate
Oil & gas royalties for a ranch
Fee simple interest in real estate for a 30-year leasehold or a Tenant-in-Common interest in real estate
Residential, Commercial, Industrial or Retail rental properties for any other real estate
Rental ski condo for a three-unit apartment building
Mitigation credits for restoring wetlands for other mitigation credits

Under IRC §1031, these properties do not qualify for tax-deferred exchange treatment:

Stock in trade or other property held primarily for sale (i.e. property held by a developer, “flipper” or other dealer)
Securities or other evidences of indebtedness or interest
Stocks, bonds, or notes
Certificates of trust or beneficial interests
Interests in a partnership
Choses in action (rights to receive property by judicial proceeding)
Foreign real property for U.S. real property
Goodwill of one business for goodwill of another business