Renting to Yourself and 1031s

We all would like to have our cake and eat it too. For a real estate investor that might look like having a rental property and a primary residence all in one. Many folks would love to take advantage of the tax deferral for investment properties found in 1031 exchanges and then use the property as their primary residence.  And the idea of living in the property but still treating it as an investment by “renting to myself” comes up frequently.

Renting to yourself. is a tricky business that can land you in hot water very quickly.  If you simply move in and start paying yourself rent after a 1031 it’s very clear that your intent in purchasing that property was not to buy an investment property but to purchase your primary residence – 1031 disallowed.

You could set up an LLC to rent to yourself, but if that LLC is a disregarded entity (meaning that it doesn’t file its own tax return) the IRS will ignore the entity and say that you are the taxpayer for 1031 purposes. So, you would again be renting from yourself. And the whole intent issue once again rears its head.

If the LLC is a regarded entity with its own tax return and you are more than half member, then you are a related party to the LLC. You might be able to rent to yourself, but you better make it an arm’s length true rental. Collect the rent, declare the rent, etc.

Another issue, however, is that If you do that, then you are generating taxable income for the LLC from yourself.  So you’re paying tax for the privilege of paying yourself rent.  And at that point, you should be asking yourself “why?” Why not simply hold the property with an outside renter for a year or two and then convert you’re your primary residence by moving in. There is no statutory requirement that you keep the property as investment forever.  And there’s actually specific IRS code allowing you to convert a property into your primary residence AFTER demonstrating your intent to hold for investment purposes.

By that time, you would have satisfied your 1031 intent requirements and are simply changing the use. No rent needed at that time.