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Drafting a DST Master Lease

By Marisa Byram, Michael Donovan and Andrea Patton

In the May 2015 issue of this publication, we discussed the conversion of tenancies in common (TICs) to Delaware Statutory Trusts (DSTs) as a means of refinancing real estate projects with maturing loans while preserving the ability of the original TIC investors to dispose of their investment through a like-kind exchange in the future, and the general benefits and risks associated therewith. (See http://bit.ly/1kcJsDL.) In this article, we discuss some considerations for drafting master leases for DSTs utilized in like-kind exchanges.

A DST is a separate legal entity created as a trust under Delaware law. The importance of DSTs in connection with like-kind exchanges can be traced to Rev. Rul. 2004-86, in which the IRS ruled that an interest in a DST constituted good replacement property in an otherwise qualifying like-kind exchange involving real estate. (Note: This article focuses on the use of DSTs as part of like-kind exchanges, and particularly on syndicated offerings of DST interests to investors looking to engage in a like-kind exchange. DSTs obviously have a variety of uses outside this context to which the limitations discussed in this article may not be relevant.) This conclusion was based on the fact that: 1) the restrictions on the powers of the DST described in the ruling caused it to be classified as a trust rather than as an association or partnership for tax purposes; and 2) the trust should be disregarded for U.S. federal income tax purposes.

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