Rev. Proc. 2000-37 provides that a reverse exchange will not be challenged if the taxpayer, who will be the ultimate owner of the parked property, satisfies two requirements: (i) the taxpayer enters into a written Qualified Exchange Accommodation Arrangement (“QEAA”), and (ii) the taxpayer engages the services of an exchange accommodation titleholder (“EAT”) which is typically a qualified intermediary such as All States 1031 X-Change Facilitator, LLC.

WHAT ARE THE REQUIREMENTS OF A QEAA?

• Property will be considered to be held in a QEAA if all of the following requirements are met: The property is titled in the name of the EAT or its subsidiary. The Rev. Proc. requires that “qualified indicia of ownership” of the property is held by the EAT. This requirement is met by either (i) deeding the property directly to the qualified intermediary or (ii) deeding the property to a single-member limited liability company owned by the EAT. When effectuating a reverse exchange under the safe harbor, All States forms a single-member LLC to hold the replacement property so as to protect the taxpayer from any liabilities arising from any of the other properties held by All States, and to protect All States from any liabilities arising from the replacement property;
• The taxpayer has the requisite intent. The taxpayer must have a bona fide intent that the property held by the EAT represent either replacement property or relinquished property in an exchange that is intended to qualify for non-recognition of gain (in whole or in part) or loss under section 1031;
• The parties enter into a written QEAA in a timely manner. No later than five business days after the transfer of qualified indicia of ownership of the property to the EAT, the taxpayer and the EAT enter into a written QEAA that provides that the EAT is holding the property for the benefit of the taxpayer in order to facilitate an exchange under section 1031 and the Rev. Proc. and that the taxpayer and the EAT agree to report the acquisition, holding, and disposition of the property as provided in the Rev. Proc. The agreement must specify that the EAT will be treated as the beneficial owner of the property for all federal income tax purposes. Both parties must report the federal income tax attributes of the property on their federal income tax returns in a manner consistent with the QEAA;
• 45 Day Requirement. The relinquished property must be identified within 45 days. Similar to forward deferred exchanges, the taxpayer may properly identify alternative and multiple properties;
• 180 Day Requirement. The exchange must close within 180 days after the transfer of qualified indicia of ownership of the property to the EAT; and
• Combined Time Requirement. The combined time period that the relinquished property and the replacement property are held in a QEAA does not exceed 180 days.

WHAT ARE THE REQUIREMENTS OF AN EAT?

• The EAT cannot be a disqualified person. The Rev. Proc. cross references the regulations applicable to deferred exchanges, which eliminates the usual suspects of the taxpayer’s attorney, accountant, investment banker, broker, etc. as a potential EAT.
• Federal income tax. The EAT must be subject to federal income tax or, if the EAT is treated as a partnership or S corporation for federal income tax purposes, more than 90 percent of its interests or stock are owned by partners or shareholders who are subject to federal income tax.

PERMISSIBLE AGREEMENTS

In addition to setting forth the requirements necessary to fall within the safe harbor, the Rev. Proc. listed permissible agreements that should provide most taxpayers and qualified intermediaries with the level of comfort necessary to effectuate a reverse exchange. A few of the more important types of permissible agreements are:

• Loans. The taxpayer may loan funds to the EAT or guarantee a loan to the EAT on non arm’s length terms.
• Leasing. The parked property may be leased to the taxpayer at non fair market rates. For example, the lease amount might be set at an amount equal to any loan payments against the parked property plus all other costs of holding the parked property.
• Construction. The taxpayer can manage or act as general contractor to improve the parked property, though the taxpayer should avoid realizing a profit from his role as general contractor as that may violate the exchange regulations.

CONCLUSION

The new safe harbor under Rev. Proc. 2000-37 will provide tax certainty for reverse exchanges. The requirement that the EAT obtain legal title to the replacement property makes the transaction more costly and complicated than a traditional forward exchange; and, thus, exchangors should try to sell first and buy later. Reverse construction exchanges will inevitably require more than 180 days to complete, subjecting such transactions to the “burdens and benefits” test applicable to non safe harbor parking arrangements. Taxpayers who need to engage in non-safe harbor parking exchanges should not feel any greater sense of tax risk for their transactions after the issuance of the Rev. Proc., since the IRS acknowledges therein that parking arrangements can be accomplished outside the safe harbor. The key to a successful non-safe harbor reverse exchange will remain careful structuring to meet the benefits and burdens test.