1031 exchange:
Dealer Or Investor
Add YOUR Info to Newsletter  |
Often clients ask about the tax consequences of a particular real estate transaction they are planning, and the answer is an ambiguous "It depends." The reason for this is the difference in the way the IRS treats investors as compared to dealers, and the criteria by which the IRS determines the taxpayer's status. Typically, a seller of real estate who has gain in the property being sold wants to be classified as an investor (taxed at a 20% capital gain rate) rather than as a dealer (taxed at a 39.1% ordinary income rate). Section 1221 defines a capital asset as "…property held by the taxpayer primarily for sale to customers in the ordinary course of … trade or business." However, the Code does not specify exactly by which characteristics a property falls into this category. Therefore, the courts have defined a test with seven factors that has been used to determine on a case by case basis whether the taxpayer is a dealer or an investor. It is important to remember that none of these seven factors is decisive on its own, and some may carry more weight in the determination than others.
| Classification Factors | Dealer | Investor |
| Acquired and held property for sale to customers | Yes | No |
| Made substantial effort to sell property | Yes | No |
| Large number, extent, continuous, and substantial sales | Yes | No |
| Subdivided, developed, advertised to increase sales | Yes | No |
| Used business office for sale of property | Yes | No |
| Supervised or controlled selling representative | Yes | No |
| Habitually devoted extensive time and effort to sales | Yes | No |