By Dr. Robert G. Hetsler, Jr.
When done correctly, a #1031 exchange can be a fairly straightforward process. However, there is often one area that catches potential exchangers off guard. The concept of constructive receipt often torpedoes the tax deferred nature of an exchange, and subjects the exchanger to immediate capital gains taxes.
So what is constructive receipt and how is it different than actual receipt? Actual receipt is easy to identify – the exchanger directly receives the sale proceeds from the relinquished property. It also doesn’t matter what form the funds take – cash or wire transfer into an account. The bottom line is if the exchanger has direct access to the funds at any time, the transaction no longer qualifies as a 1031 exchange.
But constructive receipt is slightly more elusive. Constructive receipt occurs when the exchanger has the right to receive or control funds, even if he or she does not have direct access to the funds. As an example, if an exchanger receives the proceeds in the form of a check, then he or she is deemed to have constructive receipt even if they never cash the check.
The mere act of accepting the check, made payable to the exchanger (even with no intention of cashing it themselves), cancels the exchange before it really begins. Even if the exchanger plans to immediately endorse the check over to the qualified intermediary.
Because of the concept of constructive receipt, it is critical that any investor planning to conduct a 1031 exchange brings a qualified intermediary on board before the relinquished property is sold. This eliminates the possibility of constructive receipt.
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