Author: Matthew Riley
How do you characterize vacant and unproductive land that is not used for personal enjoyment nor in furtherance of any trade or business purpose?
As we described in a prior article, for property to qualify for a Like-Kind Exchange the real estate investor must hold it for productive use in a trade or business, or for investment purposes. But what about property that is unproductive, meaning that it does not provide any profitable income to the owner, or that perhaps even creates losses for them? What about acquired property that an owner has left untouched or unimproved?
Treasury Regulation 1.1031(a)-1(b) explains that “Like-Kind” refers to the “nature of character of the property and not to its grade or quality.” The regulation further states that “[o]ne kind or class or property may not, under [Section 1031], be exchanged for property of a different kind or class.”
IRS Publication 544 outlines different kinds or classes of property eligible for like-kind exchanges. Real estate is one kind or class of property, but other property classes exist. The IRS, for example, has created general asset classes for personal property– some of these include the following:
- Asset Class 00.12 – Information systems, such as computers and peripheral equipment.
- Asset Class 00.21 – Airplanes (airframes and engines), except planes used in commercial or contract carrying of passengers or friend, and all helicopters (airframes and engines).
- Asset Class 00.23 – Buses
What Treasury Regulation 1.1031(a)-1(b) does is restrict property exchanges between any two different and distinct classes– an office building considered to be in the real estate class cannot be exchange for a Learjet 85, considered to be in the airplane class or asset class 00.21; The IBM Sequoia supercomputer in the asset class 00.12 cannot be exchanged for a Justin Bieber Tour Bus in the asset class 00.23.
In other words, the IRS is talking about apples and oranges. Apples can be exchanged for any other apple because they are the same kind of fruit. But you cannot exchange an apple for an orange, because these are two different types or classes of fruit. But again, any apple can be exchanged for any other apple. A Red Delicious apple can be exchanged for a Granny Smith or Fiji; a rotten apple on the ground can be exchanged for one picked from the apple tree. The reason this analogy works is because the exchange is occurring within the general class of apples, and the differences that exist are due to the variety of types and qualities existing between any two apples within that class.
Under the general and broad property class, “real estate”, there are countless types and qualities of real estate. The IRS is not concerned with the peculiar qualities of the properties being exchanged, whether the property is a warehouse or pasture, profitable or not to the owner, they are only looking to see whether the properties are both classified as real estate. Whether the land is vacant or unproductive, therefore, is not material to whether the property is eligible for an exchange.
There are, however, two important caveats to this general rule: