Starker v. United States

Starker v. United States, 602 F.2d 1341 (9th Cir. 1979), is a United States Court of Appeals for the Ninth Circuit decision holding that a non-simultaneous (deferred) like-kind exchange can qualify for nonrecognition of gain under 26 U.S.C. § 1031.^[1] The court concluded that later-received replacement property under a single exchange agreement may still be an “exchange,” and that a 6% “growth factor” credited on the exchange balance was taxable as ordinary income.^[2][a]

Section 1031 provides for nonrecognition of gain on exchanges of property held for productive use in a trade or business or for investment, when exchanged solely for property of like kind.^[3] Before Starker, some authorities and the government read “exchange” to require simultaneous transfers; the Ninth Circuit had earlier taken a substance-over-form approach in similar contexts.^[4] Contemporary commentary recognized Starker as a significant shift toward permitting deferred exchanges.^[5]

On April 1, 1967, T. J. Starker and family members entered a “land exchange agreement” with Crown Zellerbach Corporation. The Starkers conveyed timberland to Crown; in return, Crown agreed to acquire and convey other real property selected by the Starkers over time, tracking an internal “exchange balance” that accrued a 6% annual “growth factor.” Between September 1967 and May 1969, Crown transferred a series of replacement parcels to T. J. Starker; no cash was ultimately paid.^[6]

District court (1977). The U.S. District Court for the District of Oregon held the transactions did not qualify under § 1031 and treated the 6% growth amount as ordinary income. Judgment was entered for the government.^[7]

Ninth Circuit (1979). The Ninth Circuit affirmed in part and reversed in part, rejecting strict simultaneity while agreeing that the growth factor was taxable.^[1]

Whether 26 U.S.C. § 1031 requires simultaneous reciprocal transfers, or whether a deferred exchange carried out under a single, integrated agreement can qualify.^[1][8]

Summary: The government urged a simultaneity requirement; the court declined to adopt one.

Whether the taxpayer’s contractual right (exchange account/credit) to receive like-kind property constituted sufficient “property” within an exchange structure—or whether the arrangement should instead be characterized as a cash sale followed by repurchases.^[9]

Summary: The panel analyzed whether contract rights could function within an exchange rather than convert the deal into a sale.

Whether receiving multiple replacement parcels over time pursuant to one exchange agreement can be treated as a single § 1031 exchange rather than separate taxable dispositions.^[1][6]

Summary: The court considered aggregation of staged conveyances under one integrated agreement.

Whether a time gap of months or years between the taxpayer’s transfer and the receipt of replacement property, standing alone, disqualifies the transaction.^[8]

Summary: The panel addressed whether the statute imposes any bright-line temporal cutoff.

Whether the 6% “growth factor” credited on the exchange balance should be treated as part of nonrecognized exchange consideration or as ordinary income (interest-like compensation).^[2]

Summary: The court evaluated the growth factor’s character for income tax purposes.

Deferred exchanges qualify; simultaneity not required. A deferred, integrated sequence of transfers can be an “exchange” under § 1031; the court declined to impose a simultaneity requirement.^[1]

Why it matters: This opened the door to modern delayed exchanges, later codified with statutory time limits.

Multiple parcels may be aggregated. Replacement property received in a series of conveyances can satisfy § 1031 when done pursuant to the same exchange agreement.^[1][6]

Why it matters: Taxpayers could complete exchanges through staged acquisitions rather than a single deed swap.

Time gap not dispositive. The panel would not “draw the line at some number of months or years” based solely on elapsed time between the disposition and the receipt of like-kind property.^[8]

Why it matters: The court favored a substance-over-form approach to timing, later bounded by statute/regulations.

Contract-right structure permitted. Binding obligations to acquire and convey replacement property may effectuate a qualifying exchange; the court treated the taxpayer’s contract right to receive property as part of a valid exchange structure, rather than recasting the arrangement as a cash sale.^[9]

Why it matters: Recognizing contract rights within § 1031 supported practical exchange mechanics used by intermediaries.

Growth factor is ordinary income. The 6% growth factor functioned as compensation for the use/forbearance of money and was taxable as ordinary income, separate from nonrecognized exchange gain.^[2]

Why it matters: Clarifies that interest-like amounts remain currently taxable even in successful § 1031 exchanges.

Reading “exchange” in 26 U.S.C. § 1031 functionally rather than formally, the court declined to “draw the line at some number of months or years” based solely on the time gap between transfers.^[8] The court also treated a contract right to acquire property as like-kind to title for § 1031 purposes.^[9] The growth factor operated like compensation for the forbearance of money and was therefore ordinary income.^[2]

Starker became the seminal authority for deferred like-kind exchanges, often called “Starker exchanges.” Congress subsequently enacted timing rules in the Deficit Reduction Act of 1984, adding 26 U.S.C. §§ 1031–a (45-day identification; 180-day exchange periods).^[10] Treasury issued detailed regulations for deferred exchanges at 26 C.F.R. § 1.1031(k)-1,^[11] and the IRS later provided a safe harbor for certain reverse/parking exchanges in Rev. Proc. 2000-37.^[12] Independent surveys and notes discuss the decision’s doctrinal and practical impact.^[13][14] As one practitioner summary puts it, “The 1979 ruling changed that, allowing delayed exchanges,” and “paved the way for the modern 1031 exchange.”^[15]

26 U.S.C. § 1031

Alderson v. Commissioner, F.2d (9th Cir. 1963).

Kwall, Jeffrey L. (2002). "Like-Kind Exchanges of Real Estate". The Tax Lawyer. 55 (2): 287–333.

Bittker, Boris I.; Lawrence Lokken. "§1031 Like-Kind Exchanges". Federal Taxation of Income, Estates and Gifts (2024 rev. ed.). Wolters Kluwer.