1031 and Done: The Collector’s Curse

Key Takeaways

  • Changes in the rules for personal property under §1031 will limit many collectors, but those changes don’t mean all sellers now have to realize tax on their sales.

  • The Federal long-term capital gains tax rate for real property is 20 percent, but it’s 28 percent for tangible personal property.

  • Add state income tax and the loss of itemized deductions for most tax payers, selling collectibles just got much more onerous….but you still have options.

 

The landmark 2017 Tax Cut and Jobs Act contains sweeping changes to the entire tax system. Corporate, personal and estate taxes have been revamped entirely. Taxpayers and their CPAs are scrambling to adapt to the new rules. Simply understanding the changes and working through the variations of scenarios as they play out is a monumental chore. One important change that’s not attracting much attention, despite its potentially significant impact, are the revisions to §1031. This code section refers to “like kind” exchanges of property.

Essentially, a properly executed §1031 exchange allowed a property owner to defer the recognition of a gain until the property that it was exchanged for was ultimately sold. For many investors, like kind exchanges have been a very smart method for swapping their way to significant gains by delaying the taxes the owe. In the past, like kind included both real property and personal property. While the majority of the value of §1031 exchanges were in real property, those who collect valuable assets such as fine art, collector automobiles and antiques also utilized the §1031 exchange to enhance their collections. And, while the Federal long-term capital gains tax rate for real property is 20 percent, for tangible personal property it is 28 percent. Add state income tax and the loss of itemized deductions for most tax payers, selling collectibles just got much more onerous.

What can collectors do?

Certainly, collectors are passionate about their collections and often buy or sell in the heat of the moment. While this may be necessary at times, there are still planning considerations that can be implemented, especially before a planned sale. First, there are several charitable techniques that could be considered. One option is a Flip Charitable Remainder Unitrust (Flip CRT). With this technique, the owner creates a special trust and transfers his or her collectible to the trust prior to any sales transaction taking place. The trust then sells the asset and receives cash from the sale. At the time of the sale the donor will receive a charitable income tax deduction based on a number of factors: The donor’s age, the payout rate of the trust, the cost basis of the asset transferred and several other technical factors.

Note, with personal property donated to these types of trusts the income tax charitable deduction is limited by what the owner paid for the item (cost basis) [  }not its fair market value (what it sells for). Further, the deduction for personal property is limited to 30 percent of the donor’s Adjusted Gross Income (AGI) in any given year. However, any unused deduction is available to be carried over for five additional years until it is fully utilized. In this transfer, there is no capital gains tax realized at the time of the sale. However, the donor no longer has access to the cash or the asset but rather will receive and income stream for life based on the what the property sold for and how the trust payout is structured.

Yet another opportunity for tax savings is the “young” Pooled Income Fund (PIF). Similar to the aforementioned Flip CRT, a PIF is a vehicle for avoiding the capital gains tax on the sale of personal property while creating a charitable income tax deduction. Unlike the Flip CRT, the PIF must be established and maintained by a public charity recognized under §501(c )(3). So, it is important to identify the charity that will cooperate with this complexity. One of the major advantages of the PIF strategy is the size of the charitable income tax deduction, which in most cases is many times larger than can be accomplished via a CRT.

The reasons for this are many and unnecessary to explain here. Just know that since the deduction is likely to be much larger, there is more planning flexibility. Consider, for example, that it might be possible to contribute only 50 percent of the asset or less, and still receive enough deduction to make it worthy of consideration. Indeed, with good planning, it may be possible to leave an income stream for the next generation after the donor is deceased--all while avoiding the long term capital gains tax completely.

Ultimately, money left in the CRT or the PIF will transfer to charity, so make sure you and your advisor do some analysis before entering into either of these arrangements. An additional, non-charitable strategy is the monetized installment sale. While not widely known, a monetized installment sale allows the seller to sell and defer taxes for 30 years while receiving more than 90 percent of the sales proceeds. Unlike the aforementioned charitable strategies, the monetized installment sale can take place even after an agreement to sell has been negotiated and agreed to--something that’s prohibited with charitable planning. And while there is no income tax deduction available, the seller does retain the funds for personal use.


Conclusion

While changes in the rules for personal property under §1031 will limit many collectors, they don’t mean that all sellers will now have to realize tax on sales. For those who own their collectibles for more than a year, the long term capital gains tax can be deferred or eliminated. To do so simply requires different planning and well informed advisors.

Robert J. Pyle, CFP®, CFA is president of Diversified Asset Management, Inc. (DAMI). DAMI is licensed as an investment adviser with the State of Colorado Division of Securities, and its investment advisory representatives are licensed by the State of Colorado. DAMI will only transact business in other states to the extent DAMI has made the requisite notice filings or obtained the necessary licensing in such state. No follow up or individualized responses to persons in other jurisdictions that involve either rendering or attempting to render personalized investment advice for compensation will be made absent compliance with applicable legal requirements, or an applicable exemption or exclusion. It does not constitute investment or tax advice. To contact Robert, call 303-440-2906 or e-mail info@diversifiedassetmanagement.com.

 

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