If you are selling your franchise, then you probably are subject to capital gains taxes. As a general rule, the sale of property subjects the seller to capital gains taxes.
However, exception to this general rule may apply if you are using the money to purchase another franchise business, if the sale applies for a "1031 exchange" you may be able defer losses or gains if you purchase like-kind property within a specified period of time after the sale.
The details are complicated and here is a general overview.
First, the 1031 exchange definition is complicated; however, the Internal Revenue Service Code states, in relevant part, that "no gain or loss is recognized if property held for productive use in a trade or business or for investment is exchanged solely for property of a like kind to be held either for productive use in a trade or business or for investment".
The definition of "like-kind" property is crucial to a determination of whether a transaction qualifies. Certain kinds of property are specifically excluded from qualifying for a 1031 exchange.
According to the IRS Code, the following types of property are disqualified:
(i) Stock in trade or other property held primarily for sale;
(ii) Stocks, bonds, or notes;
(iii) Other securities or evidences of indebtedness or interest;
(iv) Interests in a partnership;
(v) Certificates of trust or beneficial interests; or
(vi) Choses in action.
In order to better understand how a 1031 exchange works, consider the following example. Imagine that you own a rental property in Indiana that was originally purchased for $50,000. Since the purchase, you have completed $20,000 worth of improvements on the property, however, the property has also depreciated by $10,000.
Imagine further that you now wish to sell the property. The sale of the property grosses $145,000 with selling expenses of $10,000. The profit from the sale of the rental property would normally be subject to capital gains taxes totaling $14,800 if you are in the 25 percent, or higher, tax bracket. If, however, the sale qualifies for a 1031 exchange, you will be able to hold onto the $14,800 that you would have paid in capital gains taxes, interest free, until such time as you sell the replacement property.
(At 3.5 percent interest, that reflects a savings of $518 per year, or $2,590 over a five year period of time. Of course, if the $14,800 you held onto as a result of using a 1031 exchange is investment in a higher yielding investment, your savings will increase accordingly.)
The replacement property must be one of like-kind. In the above example, this means you cannot purchase a property in which you plan to live to replace a rental property. In addition, the replacement property must be purchased within 180 days after the sale of the original property to meet the 1031 exchange definition.
This has been a guest post by Andy Gustafson. Since 2003, Andy has been a qualified intermediary of Internal Revenue Section 1031 tax deferred exchanges earning the Certified Exchange Specialist(r) designation. Individuals and companies, both domestic and foreign defer federal and state capital gains and recaptured depreciation taxes when selling and replacing real and personal property held for investment or in a business. This postpones and in some scenarios eliminates tax payment.