Structuring and Planning Reverse Exchanges
By Gregory J. Rocca and Michael K. Phillips
Copyright 2005 Pacific Realty Exchange, Inc. All rights reserved.
The most important structuring and planning issues affecting reverse exchanges
were detailed above: (1) pure reverse exchange versus parking transaction;
(2) exchange last versus exchange first method; (3) safe harbor versus non-safe-harbor
transaction; and (4) whether or not the EAT should be an express agent in
a safe harbor transaction. Another issue that should be considered upfront
is whether a safe harbor transaction can be converted into a non-safe-harbor
transaction (e.g., if the 180-day time limitation is not met). Some commentators
believe that the transaction must be structured in advance as either a safe
harbor transaction or a non-safe-harbor transaction. Others believe that
the transaction can be structured so that it is not mutually exclusive, and
that it should be possible to convert a safe harbor into a non-safe-harbor
transaction. To be able to convert the transaction, the QEAA agreement would
have to meet the requirements of the safe harbor and not have provisions
that would disqualify a non-safe-harbor exchange. This would rule out any
express agency statement in the QEAA agreement and may restrict the types
of otherwise “permissible agreements” that could be used under
Section 4.03 of Rev. Proc. 2000-37.
If the transaction may be converted to a non-safe-harbor transaction,
or if a non-safe-harbor transaction is contemplated all along, the parties
should properly document the non-agency status of the accommodator. Everything
possible should be done to avoid having the taxpayer held out as the owner
of the parked property to third parties. Tax reporting of the transaction
should be consistent with the accommodator’s ownership of the parked
property during the gap period. Further, in these situations, it is very
helpful if the accommodator has some “skin in the game.” Some
commentators believe that an equity interest of anywhere from 3% to 10%
of the cost of the parked property may be effective. The parties may wish
to review the accounting standards applicable to “synthetic leases,” although
they apply only for financial reporting purposes. See Financial Accounting
Standards Board (“FASB”) Statements of Financial Accounting
Standards 13 and 98 as well as Emerging Issues Task Force of FASB Release
EITF 90-15. If the accommodator puts some of its own funds into the transaction
and bears some risk of loss, it is more likely to be treated as an owner
for tax purposes.
Another planning issue is the entity structure used for the accommodator.
Advisors may consider using a single-member LLC as the accommodator. The
single-member LLC may be owned by a QI or its affiliates. The single-member
LLC is treated as a disregarded entity or tax “nothing” under
the default rule of Reg. Section 301.7701-3(b)(ii). In the exchange last
format, the taxpayer can acquire the 100% membership interest in the LLC
rather than direct title to the replacement property and still have it qualify
as the receipt of a like-kind asset. This potentially allows avoidance of
transfer tax applicable to a real property title transfer, at least in jurisdictions
where there is a distinction between entity ownership transfer and title
transfer. This technique also anticipates potential lender requirements
for a bankruptcy-remote single-purpose entity.
In planning for a reverse exchange, the value and equity of the relinquished
and replacement properties must be considered. Even if the sales price of
the relinquished property is not known, the exchanger should estimate the
value, structure financing accordingly, and anticipate any boot that will
be received. At the conclusion of the exchange, the exchanger must trade
even or up in both value and equity from the relinquished property to the
replacement property, or the exchanger will receive boot and must recognize
gain.
The retirement of debt created in reverse exchanges raises additional issues.
In the exchange last method, the debt is secured by the replacement property
and paid off with relinquished property sales proceeds. To the extent of
any deficiency in proceeds, the exchanger takes the replacement property
subject to the debt, assumes the debt or provides its own funds to retire
the debt. If the proceeds exceed the debt, further properties can be acquired
in the exchange or the exchanger receives boot. Under the exchange last
method, the time limit for additional properties under Section 1031(a)(3)
only begins to run when the exchanger receives the replacement property.
In the exchange first method, the debt is secured by the relinquished property.
If the debt is due to a third party, the exchanger will need to make up
any shortfall between the proceeds from sale and the amount of the debt
payoff. If the debt is due to the exchanger, it will generally be canceled.
If the proceeds of sale exceed the debt and are not retained by the accommodator,
the excess proceeds will be available for use in further acquisitions only
if the Section 1031(a)(3) time periods have not elapsed. Under the exchange
first method, the time limits begin to run when the exchange receives the
replacement property and the accommodator acquires the relinquished property,
not later when the accommodator sells the relinquished property.
Another planning issue is the exit strategy or “sunset provisions” if
the exchange is not timely consummated. In either the exchange last or exchange
first structure, the accommodator will not want to hold the parked property
indefinitely. What happens if the relinquished property is not sold? PLR
200111025 indicates the kind of “sunset provisions” that may
be used in a non-safe-harbor transaction using the exchange last method.
An option providing price protection to the exchanger was used for 18 months
(options under the safe harbor may only be effective for 185 days). If the
option was not exercised, a notice and sale procedure could be used so that
the accommodator could dispose of the parked property. A similar suggestion
is to create a short fuse option to purchase at a fixed price (i.e., exercisable
only between 12th and 18th month of the lease term), coupled with rental
escalations applying thereafter. Some accommodators structure the option
so that the parked property must be purchased after a certain time period
at appraised fair market value. The accommodator gets to keep any upside
but is not responsible for any downside. It is unclear how long fixed-price
call or put options may last in a non-safe-harbor transaction. Some practitioners
believe that an option lasting from 12 to 18 months should not, in and of
itself, undermine ownership of the parked property by the accommodator for
tax purposes.
Advisors should also properly structure and plan for the tax reporting
requirements applicable to an EAT (or other accommodator) and the taxpayer
in a typical parking transaction. Under both the exchange last and first
methods, the EAT must report activity associated with either the replacement
or relinquished property, including the receipt of income, payment of expenses,
capitalization of costs and claiming any depreciation deductions. The EAT
must also report any gain or loss on the sale or other disposition of the
property. Under the exchange first method, the taxpayer must currently file
Form 8824 and report the exchange of the relinquished property for the replacement
property. The taxpayer must also report the activity associated with the
replacement property that the taxpayer now owns and any income, expenses
or costs as a lessee or manager of the relinquished property after the exchange.
Under the exchange last method, the taxpayer must report the relinquished
property that the taxpayer continues to own and any income, expenses or
costs as a lessee or manager of the replacement property. The taxpayer must
subsequently file Form 8824 for the tax year in which the exchange under
the exchange last method occurs. Both parties must take into account rent,
interest, taxes, insurance and other accrued income or expenses in accordance
with their method of accounting.
Rev. Proc. 2000-37 provides that, in a safe harbor parking transaction,
the EAT must be treated as the beneficial owner of the property for all
federal income tax purposes. Further, the parties must report the transaction
and the tax attributes of the property on their respective tax returns consistently
and in accordance with the EAT’s beneficial ownership for federal
income tax purposes. Thus, in general, the EAT and only the EAT may claim
depreciation with respect to the replacement property under the exchange
last method or the relinquished property under the exchange first method.
The same goes for a non-safe-harbor parking transaction in which the EAT
must be respected as the owner of the property under general tax principles
and the authorities under Section 1031. The taxpayer must not claim depreciation
deductions or otherwise report the income, expenses and costs of the owner
of the property while the property is held by the EAT. Thus, tax reporting
for the EAT and the taxpayer may involve depreciation deductions, income
and expenses under leases or management agreements, interest income and
expenses under loans, taxes, construction and other capitalized costs, gain
or loss on the sale or other disposition of the property, and Form 8824
for reporting of the exchange. Further, the parties will need to show the
assets and liabilities arising out of the parking transaction on the balance
sheets of their respective tax returns. Various Forms 1099 may also need
to be filed in connection with the transactions.
The EAT may have to claim depreciation deductions if it holds depreciable
property used in a trade or business or held for the production of income.
Merely because the EAT intends to dispose of the property at a future date
does not necessarily mean that the property is inventory in the hands of
the EAT. Rental property, for example, may still be considered used in a
trade or business or held for the production of income in the interim period.
Since the depreciation allowance is mandatory, the EAT may be forced to
claim it or the Service could reduce the EAT’s basis on sale by the
amount of depreciation allowable but not claimed. However, this remains
unclear. Section 3.03 of Rev. Proc. 2000-37 indicates that the EAT may be
precluded from claiming depreciation deductions (e.g., as a dealer). What
is clear is that the taxpayer should not claim depreciation deductions as
the owner of the parked property while the EAT holds title.
The EAT and the taxpayer will need to take into account and report on their
respective tax returns the following items in accordance with their method
of accounting:
a. rent received and paid under the master lease, including base rent and
additional rent under a net lease for taxes, insurance, repairs and maintenance;
b. the EAT should report the gross rent received under a net lease and
deduct the taxes, insurance and other expenses paid;
c. the EAT should report the gross rent received from the property and
management fees paid to the taxpayer if a management agreement is used (the
EAT will deduct the management fees and the taxpayer will report the management
income);
d. rent received under subleases must be reported by the taxpayer and the
taxpayer will deduct the rent paid to the EAT under the master lease;
e. interest paid or accrued on the loans incurred by the EAT, including
loans from taxpayer or its affiliates, should be deducted by the EAT in
accordance with its method of accounting, and the taxpayer should similarly
report interest income;
f. other fees or income should be included in income, deducted or capitalized
as appropriate by the parties, including set-up or acquisition fees, exchange
fees, financing fees, guaranty fees, construction fees and option fees;
g. if the EAT is a new entity, the EAT will amortize its organizational
costs under Sections 248 or 709(b);
h. reimbursements of the EAT’s costs should be reported;
i. appropriate 1099 Forms may need to be issued by the EAT and the taxpayer,
including forms to third parties;
j. the EAT should account for deposits received from tenants, including
any deposits received under a master lease;
k. all capitalized costs, including construction expenditures, should be
shown on the EAT’s balance sheet;
l. all loans should be reflected in the EAT’s liabilities, including
loans from the taxpayer or its affiliates;
m. accrued expenses, including interest and taxes that are not deductible
in accordance with the EAT’s method of accounting, should be shown
as a current liability;
n. the capital and net worth of the EAT will be known from the balance
sheet (it would be useful for the EAT to have some capital and net worth
if a “benefits and burdens” test is applied).
Under the exchange first method, the taxpayer will currently report the
exchange of the relinquished property for the replacement property as
a simultaneous exchange on Form 8824. The current form has no special reporting
requirements or boxes to check for a parking transaction under Rev. Proc.
2000-37 or a reverse exchange. The EAT will report gain or loss from
the
sale of the relinquished property in the tax year that it sells the relinquished
property. Under the exchange last method, the taxpayer will report the
exchange at a future date when the relinquished property is sold. The taxpayer
will
then report the exchange as a simultaneous exchange on Form 8824. The
EAT will report gain or loss on the sale or exchange of the replacement
property.
In summary, advisors should consider all of the tax reporting requirements
associated with a parking transaction. These reporting requirements may
add significantly to the costs of the transaction and should be taken
into account by the EAT in determining its fees or other income for facilitating
the exchange. |