Dave Foster - Tax-Free Investing Through The 1031 Exchange

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Dave made a 30k mistake on this first investment, a duplex in Denver, CO, one that ended up costing him over 200k in future missed opportunities. He learned that every real estate investor has a silent partner - Uncle Sam. If you're not careful, Uncle Sam can make more money than you do. But Dave soon learned the incredible value of tax-free savings through the 1031 exchange, which allowed him to buy a sailboat with his family down the road. Dave is a Qualified Intermediary and consultant who shares his tax-saving strategies with investors who want to maximize their returns. He's the author of "Lifetime Tax-Free Wealth: The Real Estate Investor's Guide to the 1031 Exchange". Dave shares how a little bit of advance planning can keep all of your capital working for your own benefit and help you grow your portfolio faster - using your own tax dollars.

In this episode, you will be able to:

• Discover how real estate investing can maximize money you can save on taxes.
• Learn the secrets of maximizing your profits through a 1031 exchange.
• Master the art of strategic planning to make smarter real estate investments.
• Unlock the potential of a 1031 exchange to supercharge your financial freedom.
• Get insider tips on how to navigate the complexities of a 1031 exchange.
• Find out how Dave Foster leveraged 1031 exchanges to retire with a houseboat in Florida.  

The key moments in this episode are:
00:00:00 - Introduction
00:01:45 - Understanding 1031 Exchanges
00:03:28 - The Cost of Capital Gains Taxes
00:06:02 - Maximizing the Benefits of a 1031 Exchange
00:08:30 - Planning for Long-Term Goals
00:15:27 - The 1031 Exchange Strategy
00:21:15 - Planning for the Future
00:22:09 - Delaware Statutory Trust as an Option 

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Dave Foster
But then I made my first mistake, and I bought a Duplex in Denver, Colorado, fixed it up and thought I was just all fat and sassy. And then just like your guy, my accountant said, Dave, you're writing a check for 30 grand for this? I said, no. And that's when I realized that every real estate investor has a silent partner named Uncle Sam. And if you're not careful, uncle Sam's going to do better than you are.

Mike Swenson
Welcome to the REL Freedom Show, where we inspire you to pursue your passion to gain time and financial freedom through opportunities in real estate. I'm your host, Mike Swenson.

Mike Swenson
Hello, everybody. Welcome to REL Freedom, talking about building time and financial freedom through opportunities in real estate. And if you invest in real estate long enough, eventually Uncle Sam's going to want to come talk to you and talk about these profits that you're making on income and capital gains. And so for those that haven't invested or those that are kind of just getting started in their journey, a very popular topic to talk about is a 1031 exchange. And we have one of the experts on our show today, Dave Foster. So Dave is the author of Lifetime Tax Free Wealth the Real Estate Investors Guide to the 1031 Exchange. You are a qualified intermediary, which we'll talk for those people that are like, what is a qualified intermediary? We'll cover what that is and then also just talk about your story and how people can utilize a 1031 exchange to hopefully help them keep more money in their pockets long term by investing in real estate. So, Dave, we're so excited to have you on the show. Thank you for being on.

Dave Foster
Hey, it's awesome to be here. It's kind of interesting. I love the title of your podcast because ultimately, at the end of the day, whether it's real estate investing or working a chain gang or whatever it is that you do, at the end of the day, the commodity that we're all looking for is freedom and how to maximize time. Fortunately for us, we discovered early on that real estate was the way to do that. But unlike you, I'm a little more unwilling to admit that I'm going to have to pay tax one day. So I fight that every day, and it's a good fight.

Mike Swenson
Well, and for people that I talked to, I actually just talked with a guy a week or two ago who does flipping of properties, and he had some construction background. He says, hey, I've done a couple of flips. This is a very popular story of people that think flipping is a great way to get started, which it can be. But he said, you know what I realized after I sold my first property or two or three that, gosh darn it, I had a lot of capital gains taxes. And so he was saying he went from a flipping strategy to a buy and hold strategy so that he didn't have a lot of his hard work go away in capital gains taxes. And so if you haven't sold a rental property yet, you're looking to do that in the future, that's something that you're going to see. I sold a property, actually, this past year and was fortunate to combine that with a cost segregation, which I knew was happening and kind of offset that. But there's a lot of strategy behind that that people don't think about. And so why don't you share a little bit about 1031 exchanges, a little bit about how the taxes work on properties, and we'll just kind of go from there and then would love to obviously hear your story and how that applies with your investment journey.

Dave Foster
Well, your client's story actually resonates very well. That was the first mistake I ever made. And all of my clients over the last 30 years have been reaping the benefits of my mistake. I did the same exact thing, my wife and I. And actually, you'll appreciate this, being a Vikings fan and a Minnesota guy. My wife was a Minnesota city girl. I'm a Kansas farm boy. We met in Denver, Colorado. So the one common thing you don't see in any of that picture is ocean. But somehow we decided that we wanted to get off the corporate train and we wanted to go buy a sailboat and live on it and raise our kids. We had just had our first child, and it was a life changer. We really wanted to maximize the time. And so I don't know if it was just a moment of insanity or what. We said, let's go buy a sailboat and sail away. Now, how could we do that? Like so many people over the last couple of decades, we said, Gosh, let's start doing real estate. We can do that on the side. We can do it at our own time. We can build a portfolio. We'll be able to buy the Silhouette and sell away. But then I made my first mistake, and I bought a Duplex in Denver, Colorado, fixed it up and thought I was just all fat and sassy. And then just like your guy, my accountant, said, Dave, you're writing a check for 30 grand for this. I said no. And that's when I realized that every real estate investor has a silent partner named Uncle Sam. And if you're not careful, uncle Sam's going to do better than you are. Now, let's fast forward to today. What if I wouldn't have had to have paid that $30,000.30 years ago when you compound your interest and you take it out there? I would literally have had the benefit of that $30,000 making a 10% profit, $3,000 a year times 30 years compounded that's almost $200,000 that I lost in one transaction because I didn't know about the 1031 exchange and because that kind of thing just ticks me off. And because I'm an accountant by degree, I started looking for ways to get that back. And what I found was the 1031 exchange, which in a nutshell allows real estate investors to sell investment real estate, not fix and flips, but to sell real estate that they hold for investment and then to go buy new investment real estate. And in the middle, you don't have to pay the tax. The tax gets deferred, and you get to use it to go buy another property. 1996, what could that $30,000 have bought? Very easily? $150,000 Duplex again. And what's $150,000 Duplex in Denver worth these days? So that's what was left on the table. But as soon as we discovered that, we went from feeling hopeless to saying, wait a minute, if we do this right, we'll be able to keep our schedule, we'll be able to get the sailboat, we'll be able to live off our regardings and everything work. And sure enough, ten years later to the day, we had moved our portfolio from Denver, Colorado, to Stanford, Connecticut, to Cape Coral, Florida, and ended up buying a sailboat, 53 foot sailboat with tax free dollars. Because at every place we lived, we also converted one of our investment properties into our primary residence. So we got to take that money tax free and the rest of it was tax deferred. And that's what bought us a portfolio of investment properties and some land and things, and we lived off of that and my private clients while we cruised on the sailboat for ten years, raising our four children. So aside from the first mistake, we've done.

Mike Swenson
Okay, now I'm curious how much of that evolved over time or developed? I'm assuming you just kind of thought one step ahead or did you think through this, okay, here's what our end game is and here's what we're looking to do. Let's think, I'm a 25 year old person listening to this, so like, well, I don't even know what I'm going to do next year, let alone think through to, okay, I'm going to go buy a sailboat 20 years from now or 15 years from now. So how did you develop that plan? Or how did it kind of evolve over time?

Dave Foster
By that time, we weren't just young newbies, we were still relatively young, but we had waited a while to have kids. So we were at a phase in life where we could turn from just putting 1ft in front of another to being much more strategic. So for us it really was and I've got a coaching background, so it really was all about projecting ahead. You've got to have the goal and then you work back towards it. But sometimes figuring out what that goal is going to be is what's tough.

Mike Swenson
Yeah.

Dave Foster
So for us, it was a lot of date nights, a lot of what do we really want? What will let us get to what we want, because what we really wanted was not a sailboat. What we really wanted was time. So that kind of manifests itself differently, doesn't it? So we started looking, where can we find ways to live where we won't be on the corporate train, where it's cheap. Oh, buy a boat, he said it'll be easy, go get a sailboat, it'll be fun, she said it'll be cheap. Well it probably wasn't any of those, but it got us to where we wanted to get to. And so from there we then also and this is where every investor can work right now. And that is you can't do something that the market doesn't want you to do. At that time, we were just in a crazy growth phase in Denver, but we saw it tapping out, we needed to get to water, and we saw the northeast was starting to explode, real estate wise. So we sold our Denver portfolio at the peak of the market, then moved it all to Stanford, Connecticut. So we were watching the market, and you can't time the market, but you can sure predict where it's going to go. And then when we were in Stanford, Connecticut, this was in the early two thousand s, we started to hear this noise about southwest Florida because Miami was priced out, the east coast was priced out, but the gulf coast nobody knew about. And so we said, my gosh, that's it, it's warm water. We could get a house with a sailboat dock, let's go. So we did the 1031 exchanges into that. Now at each point it took us a couple of years because we had to develop a portfolio where we were at. Then we had to do the 1031 exchanges to sell those properties and buy ahead. But in every case it was watching what the market was telling us and it's just reacting to that. So go focused, see what the market's telling you. And doesn't matter if it's one step or it doesn't, you'll get where you want to get to.

Mike Swenson
Now for people wondering just real quick, going over some of the nuances, because there is guidelines around this, right? You can't do it willy nilly, however you want. And so there's rules around selling a property, identifying properties and how that works, and even the handling of the money, which gets back to you being an intermediary. So talk about the logistics of the 1031 exchange itself and kind of some of those guidelines for folks that are curious to learn more about it.

Dave Foster
So if you go back 100 years to when it started, it's one of the original parts of the tax code. And it was designed to allow young farmers who were trying to grow the agribusiness industry in America, but if they sold their farm to go buy a bigger farm, they many times could not do it because of the taxes. Well that didn't just keep them from growing, that kept entry level farmers from buying the smaller farms. And it was stagnating the industry. So that's when Congress put Section 1031 in the code, which allowed people to sell investment real estate and buy new investment real estate. Now fast forward to like 1980 and all of a sudden there was a bright guy named Starker who said, wait a minute, if this was good for farmers and industrialists, it should be good for me. But he did it his own way and over the next 20 years had a massive court battle between the IRS and him, which was finally resolved when the IRS lost. Doesn't happen very often. Now, can you imagine? Were they happy about that? No, but they had to let us do it. And now it was going to be user friendly. So what they did was they created some guardrails that are very stringent so that while they have to let you do it, they don't have to make it easy. And the first and foremost one, if your folks take nothing away other than this today, it's that you can't do it yourself. You have to use the services of an unrelated third party, someone like us called the Qualified Intermediary. And our job is to document the exchange and to hold the proceeds in between the sale and the purchase. Now, it's always going to start with the sale of a piece of property and your proceeds go to the Intermediary and you start shopping. From that date, you only have 45 more days to identify your potential replacement. So right there, people start to panic a little bit, right? That's not very long. But you can go into contract for that property anytime you want, even before your old property closes. So a lot of our clients will get a contract to sell their old property and as soon as they have that, they'll start shopping and go into contract. And that does a couple of things. First of all, it mitigates that risk of the 45 days, but also it bunches up so that the closing of your sale is followed more closely by the closing of your purchase. So you have fewer days without income and that can become a big deal. You do have a total of 180 days to complete your purchase. That's usually not such a big deal, but that 45 days can bite you.

Mike Swenson
Yeah.

Dave Foster
Now, if you want to defer all tax, you have to purchase at least as much as you sell and you have to use all of your proceeds to do it. So if you sell a $500,000 property, say with $200,000 in a loan, then you have to purchase $500,000 in property using all $300,000 in cash. But the beautiful thing is, so you don't necessarily have to replace the debt, but a lot of people don't have that money, so they will. But here's one of the recession busting strategies that can really help people sell that $500,000 property and use the 1031 exchange to buy two replacements because the number of properties doesn't matter. So you can use this to really grow, but you're going to buy one property for 250,000 cash, and in this time of what we feel is higher interest rates. That feels pretty good, doesn't it? Take the other 50,000 and put that as a 20% down payment on another $250,000 property. So did you buy $500,000? Sure. Did you use all your proceeds? You sure did. But what do you have now? Well, you've got a property where your tenant is paying the mortgage, and you're getting all the write offs from that. You also have a property that's free and clear. So anytime you want to, you can do a cash out refinance, take that money, invest in another property if you find one, or go do something else business wise, or use that to invest maybe in a passive syndication. All those kinds of things are on the table. But this goes back to what you and I were talking about. Given time, we could create those strategies that will help people go forward that way. So you got the timing, you've got the Qi, we've got the reinvestment requirements. The last one really is the nuance between Fix and Flippers and investors, because Fix and Flippers cannot do 1031 exchanges because their intent is not to hold the property. Investors buy property to hold it, and that's what qualifies for 1031. Now, interestingly enough, this is the biggest pain in everybody's head is that there's no statutory holding period. You simply have to be able to demonstrate your intent if you're ever questioned. So there's a lot of honor system out here, and you have to be able to look in the mirror and say it with a straight face. I bought this property intending to hold it and then be like one of my favorite clients who said, the reason I'm selling my property after 30 days is that a bear moved into the trash can next door and my tenant won't live there anymore, and I'm not going to run a rental with a bear. I said, well, okay, that's cool. You probably get a good argument. He said, I got more than that. I got pictures. So those are the kinds of things that can build that case for you.

Mike Swenson
Save those pictures in your Google Drive folder labeled IRS Audit, and then at any point in time, you've got all your bear documentation of why the bear made you sell.

Dave Foster
Exactly right.

Mike Swenson
And as somebody that works with investors myself, we've helped clients do 1031 exchanges. And to your point, a lot of times we'll hear from people because we have investors that invest in multiple states, so they may or may not have invested with us previously, but I'll get a call saying, hey, we're looking to sell we're recording this here in November. We're looking to sell our property in January. Just want to maybe put some feelers out there and see if there's some properties that might fit what we're looking or like you said, it might be, hey, we just went under contract, we're closing 30 to 45 days from now. Let's get on the hunt here and start identifying some properties. And we've had it too before where we've looked at one or two, we've maybe written on a property that didn't work out. We were still within that 45 day window, identified another property or there might be two, three, four that they're looking at. And with it being a little bit of a slower market, you have the opportunity where those two or three or four might still be there if one doesn't work out. But we did have it where we were running right up to that deadline, but it was a property that was already identified. It ended up not working out and we moved to the next one. And so we've been through this ourselves. We've had to work with the intermediaries and make sure everything's on the up and up and find those properties. But it's worked out well on our end.

Dave Foster
Helping Investors now, one cautionary tale is that that 45 day period, at the end of day 45, you cannot alter your list anymore and you're stuck with what's on it. So what you said just resonated with me. We actually had a client that just finished up an exchange where he would name several properties, but he was not under contract for them when his 45 days was over and he got too cute with his offers and he got outbid on four of his five. And his only hope to finish his exchange was he had to go back to the people who had outbid them and offer them that plus a little bit of juice in exchange for letting him buy them. Now that was a really bad day for all of us. Fortunately, he managed to pull it off. But you've really got to be active during that 45 days, which really just kind of takes us backwards from that to say that as soon as you're thinking what's my next direction is going to be, as soon as you're starting to contemplate, is it time to sell. That's when you need to be planning. Not just with someone like yourself, who can help you, who can help them identify where the market's at, but someone like us, who can help them strategize to get where they want to get to. There's an awful lot that they can do.

Mike Swenson
And what we've seen too is they've maybe found something off market that they've identified through a broker, a lender, somebody they maybe already have a relationship where they know this person's looking to sell. And so now they already know what their next property is going to be too. And so for those of you listening right now, you're like, well, how do I do that? It might take a little bit of time. You might not be there with your first property, but we've seen that before, where it's, hey, yeah, they already know what their next property is going to be and so they're selling this property because they're ready to move into the next one. And that seller is flexible on timeline and so we've seen that as well. So then you don't have this. Oh shoot, we're running up against our deadline now. For people that do run up against the deadline, there is an opportunity out there. A Delaware statutory trust. Isn't that what's kind of like the worst case scenario if something falls through, what can I do? Because we had a client where that happened as well, and that's the route that they ended up going. Maybe share about that a little bit.

Dave Foster
Yeah. The Delaware Statutory Trust is a passive fractional ownership. And actually there are some syndications where they will let you take a tenant in common interest in the real estate itself. So both DSTs and tenants in common and the syndications that have tenants in common all can act as safe harbors for you because generally they don't fill so fast. And so you put one or two of those on your list and if nothing works out, so what it is, what I think people would be really well served to remember is, again, go back to the market and look at where it's at. Because there's a poison bill with 1031 investing, which is that the absolute best time to start a 1031 exchange is selling your property in an up market. What's the worst time to finish an exchange in an up seller's market? But that's where you're going to be stuck because of the 4598 days. By the same token, though, as we started to see things stagnate slightly, the best time to buy a property to complete your 1031 is the worst time to try to sell it a buyer's market. So you just kind of have to recognize where you're at and then react accordingly. We had my gosh, the California market was so insane that people were getting 50 offers over asking on the day that they put it up and they said, how will we ever find a property? I said, well, don't forget, you are also the seller. So you're going to take one of those 50 offers and you're going to say, I'll sell this property to you, but you're going to give me a floating closing date. You're going to give me 50% earnest money that's releasable so I can put it down on my next property. There's all sorts of strategies that you can use now. Right about now, what's really good is because there's more selection out there, get your old property under contract, start looking around, but then don't panic so much. And as interest rates climbed, it was funny because days on market increased. At the same time, the interest rate was going up almost in lockstep. So waiting for the 1031 investor was actually a real good thing to do.

Mike Swenson
I would encourage people that this is a longer term strategy. There's a little bit of planning and thought that goes into this and like you said, identifying the markets and those kind of slivers within the market, submarkets within the market to identify where those pockets are that are going to give you the best opportunity to succeed moving forward. So, I mean, there's so much more that we can cover here, obviously. We're just kind of scratching the surface. But great to hear some of the nuts and bolts and to hear in your case, how you were able to apply this to really benefit you long.

Mike Swenson
For people that want to learn more about you being a qualified intermediary, how you can help people, how can they reach out to you?

Dave Foster
Absolutely. We've created an entire web presence that's based on the idea that the IRS isn't going to teach you. So we will. The 1030 oneinvestor.com, there's a 47 part YouTube series, there's calculators, there's opportunities to interact with us, everything that you'll need to become the best educated kid in the room. And then if you feel like it, go to Amazon and order up our book, lifetime Tax Free Wealth the 1031 Investors Guide to the 1031 Exchange.

Mike Swenson
Well, thank you, Dave, for coming on and sharing with us your wisdom. Really appreciate it and it's cool to hear your story and see how you were able to apply this. This is your life's mission, being the 1031 exchange person, helping others. And so obviously you're going to do a good job applying it yourself. For anybody listening right now, please reach out. It's good to ask questions, be curious, be open, mind. I always encourage people to reach out to vendors like this with just open ended questions, curious questions like, hey, here's where I'm at, here's what I'm looking to do. What do I need to think about? Because you may not be ready to buy that property today. You may not be ready to sell that property today, but it's good to know. If I think about it now, I can avoid your $30,000 mistake, which turned into a $200,000 mistake. Now you've made that up over time, but you want to save the next person from doing that, too. So thank you, Dave, for coming on and sharing with us.