What is the tax treatment of a “deferred” like-kind exchange in which there is to be a delay in your receipt of the like-kind property?

If the transactions involved are carefully timed to meet the like-kind exchange requirements, you should be able to defer the tax on all or part of your gain on the exchanged property. In certain cases, you can even accomplish a “reverse” deferred exchange, if, for example, you are interested in acquiring a particular property, but have not yet identified the property that you will be exchanging.

A deferred exchange may be necessary when you find a “customer” who wants your property but who has not yet acquired property to turn over to you in exchange or when you find a property that you want, but have not yet found property the other person will be willing to accept in exchange. Or perhaps you have not yet determined your needs for replacement property and seek a delay in determining what property to accept in exchange.

Under the like-kind exchange rules, you can structure a deferred (nonsimultaneous) exchange. You transfer your property to the other party but defer your receipt of replacement property. To qualify, the following time limits must be met:

 (1) The property you are to receive must be “identified” no later than the day that is 45 days after your property is transferred. Identification must be made in writing and clearly describe in appropriate detail the property to be transferred.

 (2) The actual transfer must occur no later than the earlier of:

  (a) the day 180 days after your property is transferred, or

  (b) the due date (including extensions) of your tax return for the year in which you gave up your property in the exchange.

It pays to be particularly careful with this second requirement. If you transfer your property in the exchange late in the year, you should not automatically assume that you have 180 days to receive the replacement property.

Say you transfer your property on December 10th. If you don’t get an extension for filing your tax return, you will have to receive the replacement property in exchange by April 15th, which is earlier than the day that is 180 days after December 10th.

Of course, in this case, a filing extension will give you additional time. Note, however, that no extensions can be obtained on the 45- or 180-day periods themselves.

Alternative arrangements. If the time limits outlined above are too restrictive in your case, you may be able to work out alternative arrangements that effectively give the exchanging party more time to come up with the replacement property.

These arrangements can involve:

 (a) leasing your property to the other party for a period of time, rather than transferring it outright,

 (b) granting an option to buy your property to the other party which could be exercised when the replacement property becomes available, or

 (c) transferring your property to an independent trust or escrow arrangement to be held until the exchange can be made.

A final possibility is a special transaction that IRS recognizes, called a qualified exchange accommodation arrangement. If you follow to the letter the rules IRS has set out, you can arrange to have the property you want to acquire transferred to an accommodation party until the property you will relinquish has been identified.

The transaction turns the timing rule mentioned above on its head by requiring you to identify the property you intend to exchange, rather than the property you plan to receive in the exchange, within 45 days of the date that the replacement property is transferred to the accommodation party.

As noted above, this special transaction must be accomplished exactly in the way IRS requires in order for you to qualify for the favorable tax treatment.