Chapter 43 Like Kind Exchange. Rev. Rul C.B. 225

Transcription

1 Chapter 43 Like Kind Exchange Rev. Rul C.B. 225 Advice has been requested as to the application of the nonrecognition of gain or loss provisions of section 1031 under the circumstances described below. The taxpayer is the sole stockholder of a corporation. In 1958, the taxpayer purchased real property consisting of land and a house, which has been used since that time as rental income producing property. In 1970, the taxpayer exchanged his rental property for farm properties that included real property (farm land and improvements) and personal property (farm machinery) owned by the corporation. The taxpayer will not live on the farm but intends to use the farm property to raise cattle for profit, and the corporation intends to hold the house and lot as rental income producing property. The fair market value of the rental property equalled the fair market value of the farm property at the time of the exchange. Section 1031(b) provides, in part, that if an exchange would be within the provisions of section 1031(a), if it were not for the fact that the property received in exchange consists not only of property permitted by such provisions to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property. Section 1031(c) provides, in part, that if an exchange would be within the provisions of section 1031(a), if it were not for the fact that the property received in exchange consists not only of property permitted by such provisions to be received without the recognition of gain or loss, but also of other property or money, then no loss from the exchange shall be recognized. Section 267 provides, in pertinent part, that no deduction shall be allowed in respect of losses from sales or exchanges of property (other than losses in cases of distributions in corporate liquidations), directly or indirectly, between persons specified within any one of the paragraphs of section 267(b). Section 267(b) provides at paragraph (2) that an individual and a corporation more than 50 percent in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual represents a relationship referred to in section 267(a). Section 1031(d) provides, in part, that if property was acquired on an exchange described in that section, then the basis shall be the same as that of the property exchanged, decreased in the amount of any money received by the taxpayer and increased in the amount of gain or decreased in the amount of loss to the taxpayer that was recognized on such exchange. If property so acquired consisted in part of the type of property permitted by that section of the Code, to be received without the recognition of gain or loss, and in part of other property, the basis provided in that subsection shall be allocated between the properties (other than money) received, and for the purpose of the allocation there will be assigned to such other property an amount equivalent to its fair market value at the date of the exchange. Where, as in the instant case, an exchange under section 1031 involves multiple assets, the fact that the assets in the aggregate comprise a business or an integrated economic investment does

2 not result in treating the exchange as a disposition of a single piece of property. Rather, an analysis is required of the underlying property involved in the exchange. Upon analysis of the property involved in the instant case, it is concluded that the rental real property (land and improvements) and the farm real property (land and improvements) are property of like kind for purposes of section However, due to the inclusion of the farm machinery, the exchange does not solely involve property of like kind and thus does not come within the provisions of section 1031(a). If the taxpayer realized a gain on the exchange, such gain should be recognized under section 1031(b) in an amount not in excess of the fair market value of the farm machinery. The total basis of the farm land, improvements, and machinery received by the taxpayer is the adjusted basis of the land and house transferred increased by the amount of any gain recognized, such basis being allocated to the properties. For purposes of allocating such basis to the properties received, an amount equivalent to the fair market value of the farm machinery on the date of the exchange should be assigned as its basis. If the exchange had resulted in a loss being realized by the taxpayer, sections 1031(c) and 267 each provide that such loss should not be recognized. In that event, the total basis of the farm land, improvements, and farm machinery received is the adjusted basis of the land and house transferred. This basis should be allocated to the properties received, and for this purpose, there must be allocated to the farm machinery an amount equivalent to its fair market value on the date of the exchange. Accordingly, in the instant case, since the exchange includes property not of like kind (the farm machinery), the nonrecognition of gain or loss provisions of section 1031(a) are inapplicable. However, if the taxpayer realizes a gain from the exchange, such gain shall be recognized in accordance with section 1031(b) but only to the extent of the fair market value of the farm machinery. If the taxpayer realizes a loss from the exchange, such loss shall not be recognized in accordance with sections 1031(c) and 267. The basis of the property received by the taxpayer in the exchange is governed by section 1031(d). Bolker v. Commissioner 760 F.2d 1039 (9 th Cir. 1985) Bolker was the sole shareholder of the Crosby Corporation (Crosby) which owned the Montebello property. For tax purposes associated with the anticipated development of the property, Bolker decided to liquidate Crosby and distribute Montebello to himself. Before Crosby carried out the liquidation, problems in financing convinced Bolker to dispose of the Montebello property rather than developing it himself. On the day the Crosby liquidation actually occurred, Bolker contracted to exchange Montebello with Southern California Savings & Loan (SCS) for other like-kind investment property to be designated. This exchange took place three months later. Bolker asserted, and the Tax Court agreed, that the exchange qualified for nonrecognition treatment under I.R.C. 1031(a). The Commissioner appeals. Because we believe that Bolker held the Montebello property for investment within the meaning of section 1031(a), we affirm. The transaction was consummated as follows. In March 1972, Bolker commenced the liquidation of Crosby. On March 13, 1972, all of the following occurred: (1) Crosby transferred all its assets and liabilities to Bolker in redemption of all Crosby stock outstanding;

3 (2) Bolker as president of Crosby executed the Internal Revenue Service liquidation forms; (3) A deed conveying Montebello from Crosby to Bolker was recorded; (4) Bolker and Parlex, a corporation formed by Bolker's attorneys to facilitate the exchange, executed a contract to exchange Montebello for properties to be designated by Bolker; (5) Parlex contracted to convey Montebello to SCS in coordination with the exchange by Bolker and Parlex; and (6) Bolker, Crosby, Parlex, and SCS entered into a settlement agreement dismissing a breach of contract suit pending by Crosby against SCS in the event that all the other transactions went as planned. On June 30, 1972, all the transactions closed simultaneously, SCS receiving Montebello and Bolker receiving three parcels of real estate which he had previously designated. Bolker reported no gain on the transaction, asserting that it qualified for nonrecognition under then-current I.R.C. 1031(a). The Commissioner sent Bolker statutory notices of deficiency on the ground that the transaction did not qualify under section 1031(a). In the Tax Court, the Commissioner argued two theories: that Crosby, not Bolker, exchanged Montebello with SCS, and in the alternative, that Bolker did not hold Montebello for productive use in trade or business or for investment. The Tax Court rejected both arguments. The Commissioner does not appeal the decision that Bolker individually made the exchange. The Commissioner does not challenge any of the Tax Court's findings of fact; review of the Tax Court's decisions of law is de novo. II. THE HOLDING REQUIREMENT The Commissioner argued unsuccessfully in the Tax Court that because Bolker acquired the property with the intent, and almost immediate contractual obligation, to exchange it, Bolker never held the property for productive use in trade or business or for investment as required by section 1031(a). Essentially, the Commissioner's position is that the holding requirement has two elements: that the taxpayer own the property to make money rather than for personal reasons, and that at some point before the taxpayer decides to exchange the property, he have intended to keep that property as an investment. Bolker argues that the intent to exchange investment property for other investment property satisfies the holding requirement. Bolker's position also in essence posits two elements to the holding requirement: that the taxpayer own the property to make money, and that the taxpayer not intend to liquidate his investment. Authority on this issue is scarce. This is not surprising, because in almost all fact situations in which property is acquired for immediate exchange, there is no gain or loss to the acquiring taxpayer on the exchange, as the property has not had time to change in value. Therefore, it is irrelevant to that taxpayer whether section 1031(a) applies. The cases generally address the taxpayer's intent regarding the property acquired in an exchange, rather than the property given

4 up. The rule of those cases, e.g., Regals Realty Co. v. Commissioner, 127 F.2d 931, (2d Cir.1942), is that at the time of the exchange the taxpayer must intend to keep the property acquired, and intend to do so with an investment purpose. That rule would be nonsense as applied to the property given up, because at the time of the exchange the taxpayer's intent in every case is to give up the property. No exchange could qualify. The Commissioner cites two revenue rulings to support his position, Rev. Rul , C.B. 305, and Rev. Rul Revenue rulings, however, are not controlling. Moreover, neither ruling is precisely on point here. In Revenue Ruling , A owned X corporation, which owned a shopping center. Pursuant to a prearranged plan, A liquidated X to acquire the shopping center so that he could immediately exchange it with B for like-kind property. A never held the shopping center, and therefore section 1031(a) did not apply. This case differs from in two ways. First, the liquidation was planned before any intention to exchange the properties arose, not to facilitate an exchange. Second, Bolker did actually hold Montebello for three months. In Revenue Ruling , B wanted to buy A's ranch, but A wanted to exchange rather than sell. A located a desirable ranch owned by C. Pursuant to a prearranged plan, B purchased C's ranch and immediately exchanged it with A for A's ranch. As to A, the exchange qualifies under section 1031(a). As to B, it does not, since B never held C's ranch, and acquired it solely to exchange. The same distinctions as in apply between this ruling and the facts in Bolker. Neither ruling cites case authority for its holdings. Bolker cites two cases that support his position. In each case, the Tax Court gave section 1031(a) nonrecognition to a transaction in which the property given up was acquired with the intention of exchange. However, neither case actually considered the holding issue, which diminishes the persuasiveness of the authority... The Tax Court's holding in this case is based on its recent opinion in Magneson v. Commissioner, 81 T.C. 767 (1983) (court reviewed), aff'd, 753 F.2d 1490 (9th Cir.1985). In Magneson, taxpayers exchanged property for like-kind property and then by prearrangement contributed the property they acquired to a partnership. Each transaction viewed separately was admittedly tax-free, but in combination raised the issue whether contribution to a partnership satisfies the holding requirement for the acquired property. The Bolker Tax Court interpreted Magneson as holding that an intent to continue the investment rather than selling it or converting it to personal use satisfied the holding requirement, even if the taxpayer never intended to keep the specific property acquired. In both Bolker and Magneson, the Tax Court emphasized the admitted nonrecognition treatment accorded each individual step in the transactions, and reasoned that if each step were tax-free, in combination they should also be tax-free, so long as the continuity of investment principle underlying section 1031(a) is respected. We recently affirmed Magneson but our rationale differed from that of the Tax Court. While we recognized the importance of continuity of investment as the basic purpose underlying section 1031(a), see H.R.Rep. No. 704, 73d Cong., 2d Sess. 12, reprinted in C.B. (pt. 2) 554, 564, we did not hold that that principle justifies the failure to address the specific requirements of section 1031(a). Rather, we based affirmance on our holding that the Magnesons intended to and did continue to hold the acquired property, the contribution to the partnership being a change in the form of ownership rather than the relinquishment of ownership. Thus the Magnesons satisfied the specific requirements of section 1031(a). Nothing in Magneson relieves Bolker of his burden to satisfy the requirement that he have held the property given up, Montebello, for investment.

5 Finally, there is nothing in the legislative history which either supports or negates Bolker's or the Commissioner's position. In sum, the Commissioner is supported by two revenue rulings which are neither controlling nor precisely on point. Bolker is supported by two Tax Court decisions which did not explicitly address this issue. In the absence of controlling precedent, the plain language of the statute itself appears our most reliable guide. The statute requires that the property be held for productive use in trade or business or for investment. Giving these words their ordinary meaning,...a taxpayer may satisfy the holding requirement by owning the property, and the for productive use in trade or business or for investment requirement by lack of intent either to liquidate the investment or to use it for personal pursuits. These are essentially the two requirements courts have placed on the property acquired in a section 1031(a) exchange, so this interpretation would yield the symmetry the use of identical language seems to demand. The Commissioner's position, in contrast, would require us to read an unexpressed additional requirement into the statute: that the taxpayer have, previous to forming the intent to exchange one piece of property for a second parcel, an intent to keep the first piece of property indefinitely. We decline to do so. Rather, we hold that if a taxpayer owns property which he does not intend to liquidate or to use for personal pursuits, he is holding that property for productive use in trade or business or for investment within the meaning of section 1031(a). Under this formulation, the intent to exchange property for like-kind property satisfies the holding requirement, because it is not an intent to liquidate the investment or to use it for personal pursuits. Bolker acquired the Montebello property with the intent to exchange it for like-kind property, and thus he held Montebello for investment under section 1031(a). The decision of the Tax Court is therefore AFFIRMED. Bell Lines, Inc. v. United States 480 F.2d 710 (1973) A corporation which trades in old trucks and pays boot in money for new trucks comes under 1031; any gain on the trade-in is not recognized. There is, however, a capital gain, fully recognizable in the year of the transaction, where a corporation sells old trucks at a profit even though the proceeds are used to purchase new trucks. The two prior sentences are, obviously, simply different characterizations of the same economic event: replacement of property held for productive use in trade or business. But upon such characterizations tax consequences depend. If the transaction is said to be a sale and purchase rather than an exchange, the taxpayer's future basis for depreciation is the actual cost of the new trucks. In this case Bell Lines treated truck replacement in its tax returns as a sale of old trucks and a separate purchase of new ones, and depreciated the new ones at full purchase price. The Commissioner viewed the transaction as a nontaxable exchange of old trucks for new trucks and accordingly adjusted the basis of the new trucks downward, reducing claimed depreciation deductions. In its suit for refund of taxes paid, the taxpayer prevailed in the district court, and the government appeals. We affirm. Details of the transaction are as follows. The taxpayer, Bell Lines, Inc., as a West Virginia corporation with its principal place of business at Charleston, West Virginia, operated an interstate trucking line during 1959, 1960, and In the spring of 1959, taxpayer decided to replace the major portion of its truck tractors. Mack Trucks, Inc., and White Motor Corporation submitted competitive bids, and in the course of bargaining White urged the taxpayer that more could be obtained for the old trucks by selling them to a buyer White had found than by trading them to Mack. Mack immediately offered to buy

6 the old trucks rather than take them as trades. The taxpayer refused Mack's offer and stated that taxpayer was only interested in purchasing new trucks from Mack. Mack, in order to be competitive with White, offered to help taxpayer find a buyer. Subsequently Mack submitted a proposal for the new tractors with prices quoted without reference to any tradeins. On June 24, 1959, the board of directors of taxpayer voted to accept the Mack proposal. At the same time the board authorized Sclavi to sell 143 old trucks. Pursuant to the board's action, taxpayer submitted a purchase order to Mack on June 26, 1959, for 148 tractors, and pursuant to the purchase order taxpayer signed conditional sale agreements -on August 15, 1959, for 40 tractors; on September 15, 1959, for 65 tractors; and on October 15, 1959, for 43 new tractors. To dispose of taxpayer's used tractors, Sclavi accepted an offer of $650,000 from the Horner Service Corporation, an independent used truck dealership in Vineland, New Jersey. Unknown to the taxpayer, the Horner offer was prompted by an agreement between Mack and Horner. Horner agreed that it would purchase taxpayer's trucks and attempt to resell them, Horner would keep any profit it made, and Mack guaranteed that Horner would not lose money on any truck. Pursuant to this agreement, Mack furnished funds to Horner with which to pay for the taxpayer's used trucks and subsequently took title from Horner of most of the used trucks. Mack on its books treated the transaction as a trade-in. The taxpayer treated the acquisition of new tractors and the disposition of old tractors as a purchase and sale and reported it as such on its 1959 tax return, paying tax on the capital gain resulting from the disposition of the used tractors. For depreciation of the new trucks, taxpayer used actual cost as the basis for the tax years here in question, 1960 and The Commissioner determined that the transaction was an exchange of tractors for tractors. Under the Commissioner's view, the taxpayer could only use for depreciation purposes a transferred basis, computed under 1031(d). Since this was less than the basis used by taxpayer, a deficiency was assessed. Taxpayer paid the deficiency and brought this suit for a refund. The district court court found that taxpayer had entered into a contract with Mack for purchase of new trucks and had entered into a separate agreement with Horner for the sale of old trucks. The court further found that none of the officials of taxpayer knew of the arrangements between Mack and Horner. The government argues on appeal that the district court was clearly erroneous in finding: (1) that the transactions between taxpayer and Mack and between taxpayer and Horner were not mutually dependent; and, (2) that taxpayer did not have knowledge of the Mack-Horner arrangement. The officers of taxpayer testified at the trial below. Winterholler stated that she would not have agreed to a trade-in and that taxpayer had never before traded-in tractors. Amos testified that he had no knowledge of the Horner-Mack arrangement and that the purchase by taxpayer of the 148 new trucks was not conditioned on the disposition of the old trucks. Sclavi also testified that the purchase from Mack was not conditioned on sale of the old trucks and that he had no knowledge of the Mack-Horner arrangement. The purchase order agreement of June 26, 1959, and the conditional sales agreements appear to have been fully enforceable against taxpayer regardless of whether it disposed of its used tractors.. We think the testimony of taxpayer's officials, if believed, and the evidence of the contracts with Mack are sufficient to support the district court's findings. The district court's findings (1) that taxpayer had a binding agreement with Mack to purchase 148 tractors, (2) that taxpayer had a

7 separate agreement with Horner to buy its used trucks, and (3) that taxpayer was unaware of the side agreement between Mack and Horner are not clearly erroneous. There remains for us to determine whether on these facts the district court erroneously characterized the transactions as a sale and purchase rather than an exchange. We think not. In Coastal Terminals, Inc. v. United States, 320 F.2d 333 (4th Cir. 1963), we held: The purpose of Section 1031(a), as shown by its legislative history, is to defer recognition of gain or loss when a direct exchange of property between the taxpayer and another party takes place; a sale for cash does not qualify as a nontaxable exchange even though the cash is immediately reinvested in like property. [Emphasis added]. 320 F.2d at 337. The court in Carlton v. United States, 385 F.2d 238 (5th Cir. 1967), stated: The very essence of an exchange is the transfer of property between owners, while the mark of a sale is the receipt of cash for the property.... Where, as here, there is an immediate repurchase of other property with the proceeds of the sale, that distinction between a sale and exchange is crucial. 385 F.2d at 242. It is urged upon us that since Mack supplied funds to Horner to purchase the trucks and later took most of the trucks from Horner, the substance of the transaction is a trade-in or exchange between taxpayer and Mack. The question of sale or exchange often turns upon whether separate steps in a transaction are to be recognized or disregarded. This depends on whether the steps are mutually dependent or merely artificial transactions, as opposed to being steps with legal significance independent of the other steps and supported by legitimate business reasons. In the present case we cannot conclude that taxpayer had no legitimate business reasons for selling its old trucks and purchasing new ones. There was evidence it had always purchased without regard to trade-in value of old property, and it is doubtless possible to get a cheaper price where the dealer is not burdened with the necessity of disposing of old property. Moreover, as we have noted, the transactions were not mutually dependent as taxpayer was legally bound to purchase the 148 trucks from Mack whether it had sold the old ones or not. Thus the transaction between taxpayer and Horner may be reasonably viewed as one of substance to be treated separately from the taxpayer-mack transaction. * * * However, the result in a case such as this one is controlled by the district court's finding of facts. i. e., whether the replacement transactions were complementary or mutually dependent. The district court's finding below, not clearly erroneous, that the transactions in question were not mutually dependent, precludes our determining that an exchange occurred. Accordingly, the decision of the district court will be Affirmed.