Friday, March 15, 2019

1031 Exchange Qualified Intermediaries (Accommodators) Are Not Created Equal

Taxpayers often think 1031 Exchange Qualified Intermediaries are all created the exact same – but Qualified Intermediaries are absolutely not created equal – and the differences can be significant and crucial.  Were you aware that there is absolutely no regulatory body or government agency oversight available for Qualified Intermediaries, and that only about one percent of Qualified Intermediaries are licensed, regulated, audited and have minimum equity capital requirements?  That is very scary when you think about how much client funds they are holding for taxpayers' 1031 Exchange transactions.  

I have seen many 1031 Exchange Qualified Intermediaries go under over my 35 year career in the 1031 Exchange industry and most of those could have been avoided had there been any kind of regulatory or governmental oversight and audit of those Qualified Intermediaries. 

Qualified Intermediaries are an extremely crucial part of any successful 1031 Exchange transaction.  They have three (3) very important responsibilities, which include preparing the 1031 Exchange agreements and documents to properly structure the taxpayer's 1031 Exchange, working with the taxpayer and their advisors to ensure a successful 1031 Exchange transaction and probably the most important responsibility – hold, protect and safeguard taxpayers' 1031 Exchange funds. 

Taxpayers should be diligent when evaluating and selecting a Qualified Intermediary since they hold significant amounts of 1031 Exchange funds. 

Governmental Regulatory Oversight Ensures Safety and Soundness 

Government oversight by a regulatory body, such as the State Division of Banking, State Department of Financial Institutions, Office of the Comptroller of the Currency (OCC) or the Federal Reserve, will ensure that the 1031 Exchange Qualified Intermediary is operating in a safe, sound and secure manner.  This is very important since they have such tremendous fiduciary responsibilities.  The vast majority of Qualified Intermediary failures could have been prevented through this governmental oversight and audit. 

Qualified Trust Accounts Protect Investors’ Funds 

Qualified Intermediaries should deposit, hold and safeguard taxpayers' 1031 Exchange funds in separate, segregated Qualified Trust Accounts or Qualified Escrow Accounts.  The court ruled in the LandAmerica 1031 Exchange bankruptcy case that the 1031 Exchange funds held by LandAmerica 1031 Exchange were corporate (not client) funds and were subject to the creditor claims in the bankruptcy since the monies were not held in Qualified Escrow Accounts as authorized by the Department of the Treasury Regulations.  Qualified Escrow Accounts clearly delineate 1031 Exchange funds as fiduciary (client) funds and not corporate funds in the event the 1031 Exchange Qualified Intermediary files for either voluntary or involuntary bankruptcy. 

Exeter Trust Company

Exeter 1031 Exchange Services, LLC deposits, holds and safeguards its clients' 1031 Exchange funds in separate, segregated Qualified Trust Accounts at Exeter Trust Company.  Exeter Trust Company is licensed, regulated, and audited by the Wyoming Division of Banking.  It is required to maintain significant levels of equity capital.  

Bonding, Insurance and Equity Capital Provide Financial Strength and Stability

1031 Exchange Qualified Intermediaries’ should provide substantial levels of fidelity bond coverage, errors and omissions insurance coverage, fiduciary insurance coverage and maintain substantial equity capital as an added and appropriate safety net for errors or losses in a 1031 Exchange transaction.  Taxpayers should always evaluate the methods and processes put in place by the Qualified Intermediary to track, monitor and protect 1031 Exchange funds through internal controls, checks and balances. 

There is Absolutely NO Substitute for Experience 

Taxpayers need more than just a 1031 Exchange transaction processor.  Taxpayers should be able to go to a 1031 Exchange Qualified Intermediary for advice and guidance on the absolute best practices in the administration of 1031 Exchange transactions.  Interview the Qualified Intermediaries that you are looking at to ensure the administrators have the technical depth, experience and expertise necessary for the administration of 1031 Exchange transactions.  Taxpayers need assistance, so the 1031 Exchange Qualified Intermediary should be willing to work with the investor and their legal and tax advisors to ensure a successful 1031 Exchange transaction.