Yesterday, we shared with you some tips on properly identifying replacement property in your exchange. Today, we conclude this series with a few final thoughts. Each should become a requisite part of your process, so that your exchange does not fail because you made an error in identifying replacement property.
Manner Of Identification – This must be in writing and signed by the investor, and the property must be unambiguously described. This generally means identified by address or legal description. If the property is one where the investor is acquiring less than 100% interest, the percentage share of the acquisition must be identified, too.
Provide Information To The Right Person – The investor must provide the requisite identification information to either (a) the person obligated to transfer the replacement property to the investor, or (b) any other person “involved” in the exchange, such as the qualified intermediary, escrow agent or title company. However, the person receiving the information cannot be a disqualified person like the investor’s real estate agent or a family member. Generally, the qualified intermediary is the recipient of choice in an exchange.
Replacement Property Must Be The Same As What Was Identified – The investor must receive “substantially the same” property as he or she identified. While what the IRS considers “substantially the same” is a bit ambiguous, generally they draw the line at property that differs in basic nature or character.