Revisiting the Definition of "Real Property" After Tax Reform: Structuring 1031 Like-Kind Exchanges

Recording of a 90-minute premium CLE/CPE webinar with Q&A

Conducted on Wednesday, August 15, 2018

Recorded event now available

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Program Materials

This CLE webinar will examine the impact of tax reform on like-kind exchanges under IRC Section 1031 with a particular focus on what now qualifies as “real property” and what constitutes unadjusted basis of replacement property for purposes of the new IRC Section 199A deduction. The panel will discuss the requirements for like-kind exchanges to qualify for tax-deferred treatment, and provide best practices for structuring transactions to avoid adverse tax consequences after closing.


The tax reform law significantly altered IRC Section 1031. Now, only exchanges of real property qualify for IRC Section 1031 nonrecognition. IRS treatment of past Section 1031 transactions may affect what constitutes real property, as may definitions in other provisions of the tax law.

In formulating an exchange of real property, advisers must consider the reach of the definition of real property. They also must be aware of other technical aspects of Section 1031 and various planning alternatives.

Failure to observe the Section 1031 rules will cause a like-kind exchange to become a taxable event. Advisors must correctly structure Section 1031 exchanges or risk unraveling exchanges, amending tax returns, or exposing clients to unexpected tax obligations. From defining the role of the exchange facilitator in complex structures such as forward or reverse exchanges, to navigating related-party rules, there are various techniques and structures that help ensure compliance with Section 1031 and tax-free treatment for the transaction.

Listen as our experienced panel reviews and offers their insights into recent Section 1031 developments and latest planning techniques. The panel will provide attendees with best practices for documenting a Section 1031 exchange and avoiding unwanted tax consequences.



  1. Tax reform and the new real property requirement under IRC Section 1031
  2. Defining real property under Section 1031 and in other contexts
  3. Framework of 1031 exchanges
  4. Reverse exchanges
  5. Forward exchanges
  6. Tenants in common and DSTs
  7. Section 1031(f) related-party rule
  8. Improvements exchanges
  9. Drop-and-swap strategies


The panel will review these and other high priority issues:

  • Given the new Section 1031 limitations imposed under the Act, what kinds of property interests will qualify for Section 1031 treatment?
  • What is the role and what are the restrictions of the exchange facilitator?
  • How can counsel help clients avoid the 1031(f) restrictions in related-party exchanges?
  • Is there a “holding period requirement” under Section 1031?
  • What are the requirements for a reverse exchange under Section 1031?
  • What are viable structures for improvements exchanges?
  • What are current drop-and-swap practices?


Borden, Bradley
Professor Bradley T. Borden

Professor of Law
Brooklyn Law School

Professor Borden’s research, scholarship, and teaching focus on taxation of real property transactions and...  |  Read More

Flavin, Marie
Marie C. Flavin

Senior Vice President/Northeast Regional Manager
Investment Property Exchange Services

Ms. Flavin is a member of the New York and Connecticut Bars, and has been practicing real estate law since 1992. She...  |  Read More

Mannarino, Peter
Peter J. Mannarino

Federman Steifman

Mr. Mannarino’s practice consists of representing clients in connection with complex real estate transactions...  |  Read More

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