Eminent Domain newsletter Condemnation Tax Brief · Issue of July 2026 · 2 minute read

Condemnation Tax Brief, July 2026: Section 1033 Defers Depreciation Recapture; It Does Not Erase It

The most expensive misunderstanding in condemnation tax planning is that a successful Section 1033 exchange eliminates depreciation recapture. It defers it, and one piece of it cannot be deferred at all. This issue takes the recapture question apart, then turns to the severance damages rule that next month’s issue builds on.

Section 1033 defers recapture; it does not eliminate it

The basis of the replacement property is reduced by the deferred gain, so the recapture follows the asset forward. Section 1250 recapture on depreciated buildings and structural components, taxed as unrecaptured Section 1250 gain at a maximum federal rate of 25 percent, rides along into the replacement and is owed when that property is sold. For commercial and income-producing property this is the largest number on the page, and it should be calculated before anyone shops for replacement property. Unrecaptured Section 1250 gain in a condemnation runs the two calculations side by side.

Section 1245 is the part that cannot wait

Section 1245 recapture applies to personal property and equipment: fencing, wells, irrigation, machinery, the things a pipeline easement across a working farm so often takes. It is ordinary income, computed before the Section 1231 analysis, and it is recognized in the year the proceeds are received even when every other dollar of gain is deferred under Section 1033. No structure changes that. The owner needs the number before signing so the cash is set aside rather than reinvested. Section 1245 recapture in a condemnation shows what counts and how it is reported.

Severance damages shield gain only when the allocation is in writing

When part of a parcel is taken, severance damages compensate for the loss in value of what remains. For tax purposes they are proceeds from an involuntary conversion of the remainder: they reduce the basis of the retained land first, and no gain is recognized until that basis is used up. For a low-basis remainder that absorbs a large share of the award. The condition is documentation. The allocation has to appear in the closing papers; it cannot be inferred or rebuilt afterward. Rev. Rul. 83-49 then lets severance damages that exceed basis be deferred into like-kind property beyond the retained parcel. Negotiate the allocation before closing has the sequence.

The first conversation: find the floor

Before the client looks at replacement property, determine the recapture exposure. It is the floor of what will be owed whatever happens next, and the rest of the plan builds from it. The free tax estimator gives a first look in about two minutes; the planning conversation belongs before the settlement is signed. Next month: how to negotiate the severance allocation, what appraisal evidence the IRS requires, and how to reinvest severance damages under Section 1033.

Is there equipment, fencing or irrigation in the taking? A free thirty-minute call with Steve Medendorp runs the recapture split before the award closes.

Before you sign

Talk it through with Steve. Thirty minutes, no cost, no obligation.

We are not your lawyer and we do not negotiate awards. We work the tax side, with your attorney and your CPA. If you do not need us, we will tell you.

Steve Medendorp

Steve Medendorp

Steve Medendorp has worked in title and real estate law for more than twenty years and on eminent domain matters since 2012. He is a member of The Florida Bar and does not provide legal advice through Land & Tax Strategies; he works the tax side of a taking, with the owner's attorney and CPA.

About Steve →

Land & Tax Strategies, LLC is a Florida limited liability company; Matthew Chancey is a co-founder and manager. Mr. Chancey is a Registered Representative of Crescent Securities Group, Inc. (“CSG”), Member FINRA/SIPC, and an Investment Advisory Representative of Crescent Advisor Group, Inc. (“CAG”), an SEC Registered Investment Advisor. Brokerage services are offered through CSG. Investment advisory services are offered through CAG. Neither CSG nor CAG is affiliated with Land & Tax Strategies, LLC.

Steve Medendorp is a member of The Florida Bar. He does not provide legal advice through Land & Tax Strategies, and no attorney-client relationship is created by reading this article, booking a call or sending a message.

This article is general information about tax law as of its date, not legal, tax or investment advice for any specific taking, sale or award. Property owners should consult their attorney, CPA and qualified tax advisor about their own facts. Privacy Policy · Terms of Use