United States: Opportunity Zone Investments: What You Need To Know And Potential Scenarios

Erez I Tucner is a Partner in Holland & Knight's New York office

Alan Cohen is a Partner in Holland & Knight's New York office

M. James Spitzer is a Partner in Holland & Knight's New York office

HIGHLIGHTS:

  • The Internal Revenue Service (IRS) on Oct. 19, 2018, issued much anticipated proposed regulations (the Proposed Regulations) and other guidance on tax benefits arising from investments in "qualified opportunity zones" that was added to the U.S. tax code as part of the recent Tax Acts and Jobs Act of 2017.
  • Section 1400Z of the 2017 Tax Act allows taxpayers who recognize taxable capital gains as a result of a sale or exchange of property to defer the tax on all or a portion of such capital gain up until Dec. 31, 2026, by investing – within 180 days of the sale or exchange – all or a portion of the amount of the gain in businesses or properties (including real property) located in areas designated as "qualified opportunity zones," as well as receive an up to 15 percent discount on the tax on such capital gain in certain circumstances. Under certain circumstances, such qualified opportunity zone investments can be sold after 10 years with no tax on appreciation (if any).
  • In this report, Holland & Knight highlights key points for investors, provides an illustrative example that covers potential scenarios under the Opportunity Zones investment program and answers a number of important questions that investors may have.

The Internal Revenue Service (IRS) on Oct. 19, 2018, issued much anticipated proposed regulations (the Proposed Regulations) and other guidance on tax benefits arising from investments in "qualified opportunity zones" that was added to the U.S. tax code as part of the recent Tax Acts and Jobs Act of 2017 enacted by the U.S. Congress on Dec. 22, 2017 (2017 Tax Act).

Section 1400Z of the 2017 Tax Act allows taxpayers who recognize taxable capital gains as a result of a sale or exchange of property to invest, within 180 days of the sale or exchange, all or a portion of the amount of the gain in businesses or properties (including real property) located in areas designated as "qualified opportunity zones" (Qualified Opportunity Zone Properties), to elect to:

1. Not be subject to U.S. federal income tax on the recognized gain in the year it was incurred and instead be subject to U.S. federal income tax on such gain (less any decline in the fair market value of the qualified opportunity zone investment) on Dec. 31, 2026, or if earlier, the time of sale of the qualified opportunity zone investment (i.e., up to an eight-year deferral of the tax on the gains recognized in 2018)

2. At the time the gain deferred has to be taxed (i.e., Dec. 31, 2026, or earlier), to obtain a 15 percent discount on the U.S. federal income tax due on the recognized gain for which a tax-deferral election was made if the qualified opportunity zone investment is held by the taxpayer for at least seven years (or elect a 10 percent discount if the taxpayer held the qualified opportunity zone investment for at least five years), and

3. If the taxpayer holds the qualified opportunity zone investment for at least 10 years, then at the time of the sale or exchange of the qualified opportunity zone investment, the taxpayer may elect to not be subject to U.S. federal income tax on any gain realized with respect to any appreciation in the qualified opportunity zone investment

Only capital gains realized from transactions with unrelated parties before Jan. 1, 2027, may be deferred pursuant to the opportunity zone investment tax regime.

To qualify for these tax benefits, the taxpayer must make the investment through a special purpose investment vehicle (referred to as a Qualified Opportunity Fund) in the form of a U.S. corporation or a U.S. partnership (or a U.S. limited liability company that is treated as a partnership or as a corporation for U.S. federal income tax purposes) organized for this purpose. Such an investment vehicle can be formed by a sponsor and be widely held, or it can be formed by the taxpayer itself and owned by the taxpayer and related parties.

To qualify as a Qualified Opportunity Fund, the investment vehicle must make sure that at least 90 percent of its assets are comprised of qualified opportunity zone properties (i.e., it does not hold more than 10 percent of assets that are not qualified opportunity zone properties). There are specified testing periods for testing compliance with such 90 percent-asset test and also a mandatory self-certification procedure to be followed by the Qualified Opportunity Fund entity.

As an alternative to investing directly in a property located in a qualified opportunity zone and having to meet the 90 percent asset test requirement, the Qualified Opportunity Fund may invest in an entity that operates a business in the qualified opportunity zone and which qualifies as a "qualified opportunity zone business." Such an entity will qualify as a "qualified opportunity zone business" if at least 70 percent of the tangible property owned or leased by its trade or business is a qualified opportunity zone business property (which means that such entity can have an unlimited amount of intangible property in its business no matter where located). An interest in a "qualified opportunity zone business" entity that is held by a Qualified Opportunity Fund is treated as a qualified opportunity zone property for purposes of the 90 percent asset test that applies to Qualified Opportunity Funds

  • An illustrative example of the tax benefits offered by the "qualified opportunity zones" investment tax break appears in Appendix I below.

Key Points for Investors

Magnitude of the qualified opportunity zone investments tax break. Congress' Joint Committee on Taxation gave this tax break program an estimated cost of $9.4 billion over five years (i.e., 2018-2022), which translates to an estimate of more than $40 billion of qualified opportunity zone investments between 2018 and 2022.

  • The program is particularly attractive because the U.S. tax reform legislation limited the existing tax-deferral mechanism of "like-kind exchanges" to apply only to exchanges of U.S. real property for U.S. real property starting in 2018 and therefore can no longer be used to defer tax on gains derived from sales of property other than U.S. real property. The tax benefits of investing in opportunity zone investments apply to capital gain realized from any kind of property (except that it does not apply to profit from the sale of inventory or other assets held for sale).
  • The new qualified opportunity zone tax break is wider than the existing "like-kind exchange" program since it also offers a tax reduction in addition to the tax deferral in certain circumstances. Also, it is an election made by each individual investor and does not require other owners to agree to the investment. Unlike a like-kind exchange, where the deferral of gain is not time limited, the tax deferral benefit under the new qualified opportunity zone tax break is currently available only up to Dec. 31, 2026, under current law.

Traps for the unwary. The rules applicable to such tax break are complicated, unclear in many respects and present many traps for the unwary, including the following.

  • For an investment in a corporation or partnership investing in a property located in a qualified opportunity zone to be eligible for the aforementioned tax benefits, the tangible property must be used in an active trade or business in the qualified opportunity zone of the Qualified Opportunity Fund (and thus, not merely a passive investment property).
  • The original use of the property in the trade or business in the qualified opportunity zone must commence with the Qualified Opportunity Fund making the investment in the property, or alternatively, the property must be "substantially improved" by the Qualified Opportunity Fund within 30 months after the date of its acquisition of such property.

    • "Substantially improved" means, for this purpose, that the improvements (during the 30-month period) must be made to the property in an amount at least equal to the amount invested by the Qualified Opportunity Fund in acquiring the buildings on the property. (The value of the land is excluded for this purpose.)
  • The Qualified Opportunity Fund must hold and maintain at least 90 percent of its assets as assets that are qualified opportunity zone property.

    • Cash, for example, may cause a Qualified Opportunity Fund to fail this 90 percent asset test subject to an exception provided for maintenance of cash as reasonable "working capital."
    • For projects that are being constructed, the Proposed Regulations provide a safe harbor pursuant to which reasonable "working capital" includes cash (as well as cash equivalents and debt instruments with a term of 18 months or less) maintained by the Qualified Opportunity Fund for up to 31 months after acquiring the qualified opportunity zone property for the purpose of acquiring, constructing or rehabilitating such tangible property if 1) there is a written plan that identifies such cash as being held for this purpose, 2) there is written schedule consistent with the ordinary business operations of the business that the property will be used within 31 months and 3) the business substantially complies with the schedule.
    • As stated above, an interest of the Qualified Opportunity Fund in a "qualified opportunity zone business" entity is counted as qualified opportunity zone property of the Qualified Opportunity Fund for purposes of applying the 90 percent asset test.
  • Properties used for certain types of businesses are excluded from being qualified opportunity zone properties. These include any private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises.

IRS proposed regulations. Prior to issuance of the Proposed Regulations, taxpayers and tax practitioners were cautious with moving forward with such tax-advantageous investments because the qualified opportunity zone investment rules that were enacted as part of the U.S. tax reform package in December 2017 left many unanswered questions, some of which are very significant.

The Proposed Regulations and other guidance issued by the IRS on Oct. 19, 2018, attempt to answer some of the "gating" questions regarding the enacted legislation. The initial guidance offered by the Proposed Regulations is expected to jump-start investments pursuant to such tax-advantageous program. Many other questions remain unanswered. Additional sets of regulations and guidance are expected to be issued in the upcoming months. (See Holland & Knight's alert, "New Guidance on Opportunity Zones: Incentives for Investments in Low-Income Communities," Oct. 22, 2018.)

  • Some of the significant "gating" questions that are addressed by the Proposed Regulations and other guidance issued on Oct. 19, 2018, are summarized below in Appendix II.

The Proposed Regulations are proposed to be effective on or after the publication date of final regulations, but they allow eligible taxpayers and Qualified Opportunity Funds to rely on the Proposed Regulations before the final regulations' date of applicability if they apply the rules in their entirety and in a consistent manner.

State and local income tax treatment. The qualified opportunity zones investment tax regime may or may not offer similar benefits for state and local income tax purposes, depending on whether the particular state of residence of the taxpayer choses to follow the federal tax treatment. The New York State Department of Taxation and Finance said that deferral or exclusion of gains will flow through to New York taxpayers (with a caveat that New York could consider decoupling from the federal provision). The California Franchise Tax Board, on the other hand, stated that California will not conform to the deferral and exclusion of capital gains reinvested or invested in Qualified Opportunity Funds.

We Can Help

Holland & Knight attorneys are available to work with our clients on structuring investments pursuant to the Qualified Opportunity Zones investment tax regime. Members of our team are also working closely with industry groups on IRS regulations, guidance and interpretative issues in this area. For more information regarding Qualified Opportunity Zones, contact the authors or refer to Holland & Knight's earlier three-part alert series on this issue. (See "Tax Reform's New Incentives for Investments in Low-Income Communities: Part 1, Part 2 and Part 3.")

Appendix I

Qualified Opportunity Zones Investments Program: Illustrative Example

On Oct. 31, 2018, a U.S. individual, called A, sells shares in publicly traded company X, realizing a taxable capital gain for U.S. federal income tax purposes of $10 million. Assuming that A held her X shares for more than one year, the U.S. federal income tax otherwise payable on such 2018 taxable gain is $2 million, using the 20 percent long-term capital gains tax rate generally applicable under current law to a sale of capital assets by individuals after a holding period of more than one year (and assuming, for purposes of this example, that it remains the long-term capital gains tax rate in future years).

On April 1, 2019 (i.e., within 180 days of the sale of the X shares by A), A invests $10 million in Entity M, a partnership, a limited liability company or a corporation formed by A (or someone else), which is acquiring for $2 million land located in a designated "qualified opportunity zone" and borrowing and using the balance of A's equity investment to improve the property as residential rental property.

Within 30 months of its acquisition, Entity M develops the real property commences its business as residential real property. For purposes of this example, it is assumed that at all times, Entity M satisfies the conditions for being treated as a "Qualified Opportunity Fund" (including not holding more than 10 percent of assets that are not qualified opportunity zone property).

As a result of making such qualified opportunity zone investment:

1. A may elect on her 2018 U.S. federal income tax return to not be subject to U.S. federal income tax in 2018 on the $10 million long-term gain that A recognized on Oct. 31, 2018, from the sale of her X shares.

2. If A sells her qualified opportunity zone investment for $13 million on April 2, 2023 (i.e., less than five years after making the qualified opportunity zone investment):

  • Assuming that A made the tax-deferral election for 2018 (See No. 1 above), A will be subject to a 20 percent U.S. federal income tax in 2023 on long-term capital gain of $13 million, which effectively includes a) 20 percent U.S. federal income tax on the $10 million long-term gain that A recognized on Oct. 31, 2018 from the sale of her X shares, and b) 20 percent U.S. federal income tax on the $3 million long-term gain that A recognizes on April 2, 2023, from the sale of her qualified opportunity zone investment.

3. If A sells her qualified opportunity zone investment for $13 million on April 2, 2024 (i.e., more than five years after making the qualified opportunity zone investment):

  • Assuming that A made the tax-deferral election for 2018 (See No. 1 above), A would be subject to a 20 percent U.S. federal income tax in 2024 on long-term capital gain of only $12 million instead of long-term capital gain of $13 million, which effectively includes a) 20 percent U.S. federal income tax on $9 million of the $10 million long-term capital gain that A recognized on Oct. 31, 2018, from the sale of her X shares (i.e., a 10 percent discount on the tax on such gain), and b) 20 percent U.S. federal income tax on the $3 million long-term gain that A recognizes on April 2, 2024, from the sale of her qualified opportunity zone investment.

4. If A sells her qualified opportunity zone investment for $13 million on April 2, 2026 (i.e., more than seven years after making the qualified opportunity zone investment):

  • Assuming that A made the tax-deferral election for 2018 (See No. 1 above), A would be subject to a 20 percent U.S. federal income tax in 2026 on long-term capital gain of only $11.5 million instead of long-term capital gain of $13 million, which effectively includes a) 20 percent U.S. federal income tax on $8.5 million of the $10 million long-term gain that A recognized on Oct. 31, 2018, from the sale of her X shares (i.e., a 15 percent discount on the tax on such gain), and b) 20 percent U.S. federal income tax on the $3 million long-term gain A recognizes on April 2, 2026, from the sale of her qualified opportunity zone investment.

5. If A still owns her qualified opportunity zone investment on Dec. 31, 2026:

  • Assuming that A made the tax-deferral election for 2018 (See No. 1 above), A would be subject to a 20 percent U.S. federal income tax in 2026 on the long-term capital gain that A recognized on Oct. 31, 2018, from the sale of her X shares (assuming that the fair market value of her qualified opportunity zone investment as of Dec. 31, 2026, is at least $10 million, the amount initially invested). However, A may elect on her 2026 U.S. federal income tax return to be subject to the 20 percent U.S. federal income tax on only $8.5 million of the $10 million long-term gain that she recognized on Oct. 31, 2018, from the sale of her X shares (i.e., a 15 percent discount on the tax on such gain because she held the qualified opportunity zone investment for more than seven years).

    • If the fair market value of her qualified opportunity zone investment as of Dec. 31, 2026, is less than $10 million, the amount of gain recognized on Dec. 31, 2026, is also reduced by such decline in fair market value of her qualified opportunity zone investment.

6 . If A sells her qualified opportunity zone investment for $13 million on April 2, 2029 (i.e., more than 10 years after making the qualified opportunity zone investment):

  • Assuming that A made the tax-deferral election for 2018 (See No. 1 above), A may elect on her 2029 U.S. federal income tax return to not be subject to additional U.S. federal income tax on the $3 million long-term gain that A recognizes on April 2, 2029, from the sale of her qualified opportunity zone investment.

Appendix II: Q&A

Certain "Gating" Questions Addressed by IRS Proposed Regulations and Other Opportunity Zones Guidance Issued on Oct. 19, 2018

1. What types of taxpayers are eligible to elect gain deferral upon an investment of the gain amount in a qualified opportunity zone investment?

  • The Proposed Regulations clarify that taxpayers eligible to elect deferral under the qualified opportunity zone investment rules are those that recognize capital gain for U.S. federal income tax purposes, including individuals, C corporations, including regulated investment companies (RICs) and real estate investment trusts (REITs), as well as partnerships and certain other pass-through entities, including common trust funds and qualified settlement funds.

2. What types of recognized gains would qualify for the tax benefits if reinvested in a qualified opportunity zone investment?

  • The Proposed Regulations clarify that only capital gains for U.S. federal income tax purposes – and not, for example, gains from the sale of inventory or assets held for sale to customers in the ordinary course of business (e.g., sales of property by dealers) – are eligible for deferral and related tax benefits.

3. What type of interests in a Qualified Opportunity Fund qualify as a good qualified opportunity zone investment?

  • The Proposed Regulations clarify that an investment in the Qualified Opportunity Fund must be equity in the Qualified Opportunity Fund (and not a debt instrument), including preferred stock or a partnership interest with special allocation.
  • The Proposed Regulations clarify that the taxpayer may use borrowed funds to make an equity investment in a Qualified Opportunity Fund and the status as an eligible interest in a Qualified Opportunity Fund of its owner is not impaired by the taxpayer's use of the interest as collateral for a loan, whether a purchase-money loan or otherwise.

4. How is debt treated when used to finance part of the qualified opportunity zone property acquired or developed by the Qualified Opportunity Fund?

  • The Proposed Regulations clarify that debt used by the Qualified Opportunity Fund to finance the acquisition of the qualified opportunity zone property does not reduce the tax benefits of the taxpayer with respect to its equity investment portion in the Qualified Opportunity Fund.

5. How do the rules work when the taxpayer's capital gain was realized by a partnership (including a private equity fund or a real estate fund)? For example, what happens if not all partners want to invest the capital gain amount in a qualified opportunity zone investment?

  • The Proposed Regulations clarify that a partnership can make a qualified opportunity zone investment and make a related election to defer all or part of the gain it realizes (in which case, the gain deferral applies to each of the partnership's partners). In this case, the partnership has to make the qualified opportunity zone investment within 180 days of the sale of the property, generating the capital gain by the partnership.
  • The Proposed Regulations also provide that, to the extent that a partnership does not make the tax-deferral election with respect to capital gain it realizes, each partner can make a qualified opportunity zone investment and elect to defer the tax on his or her allocable shares of such gain realized by the partnership. In this case, the partner has to make the qualified opportunity zone investment within 180 days of the last day of the partnership's tax year in which the partnership sold the property generating the capital gain (such partnership gain is treated as recognized by the partner on the last day of the partnership's taxable year).

    • As an alternative, the Proposed Regulations allow the partner to elect to start the 180-day period on the day on which the sale or exchange of the property by the partnership occurred if the partner knows (or receives information) regarding both the date of the partnership's gain and the partnership's decision not to elect deferral.

6. Questions relating to the "original use" requirement in the qualified opportunity zone investment rules, specifically with respect to investments in land and improvement to lands.

  • The Proposed Regulations and contemporaneous guidance discuss the rules around land and existing buildings in qualified opportunity zones. The IRS guidance notes that land can never meet the "original use" requirement, and therefore an investment in vacant land cannot qualify as a qualified opportunity zone investment if the land is not improved within a period of time, which unless further regulations are issued, would appear to be 31 months.
  • The IRS guidance clarifies that if land is acquired and real property is constructed thereon or land is acquired with an existing building on it, the entire investment by the taxpayer in the Qualified Opportunity Fund will be treated as a good qualified opportunity zone investment, irrespective of the fact that some of the property acquired by the Qualified Opportunity Fund is attributable to the value of land (provided that the Qualified Opportunity Fund satisfies the "original use" requirement or "substantial improvement" requirement with respect to the building).

    • For example, assume that a taxpayer invests $1,000 in a Qualified Opportunity Fund that uses the funds to acquire in a qualified opportunity zone a building that has been vacant for more than a year and the land on which the building stands, and the building will be operated for the first time by the Qualified Opportunity Fund as trade or business rental property. Sixty percent ($600) of the acquisition price is allocable to the building and 40 percent ($400) is allocable to the land. In this case, even though $400 of the Qualified Opportunity Fund's cost of acquiring the land and building is attributable to the land value, the entire $1,000 investment by the taxpayer in the Qualified Opportunity Fund may be used to defer tax on $1,000 of capital gain realized by the taxpayer.
  • Furthermore, in determining the amount which needs to be invested in improvements for purposes of satisfying the "substantial improvement" requirement, only the portion of the acquisition cost allocable to the building is taken into account. The portion allocable to the land is excluded.

    • For example, if land and building were acquired for $1,000 with 60 percent ($600) of the acquisition price allocable to the building and 40 percent ($400) allocable to the land, then only $600 must be invested by the Qualifying Opportunity Fund in improving the building (or replacing it) to qualify the investment as a "substantial improvement" of property located in a qualified opportunity zone.

7. Can a taxpayer a taxpayer dispose of its investment in a Qualified Opportunity Fund, recognize gain and then reinvest that gain in a Qualified Opportunity Fund, thereby prolong the tax benefits period?

  • The Proposed Regulations clarify that if a taxpayer disposes of its investment in a Qualified Opportunity Fund and recognizes gain (and provided that this was a disposition of the entire taxpayer's initial interest in the Qualified Opportunity Fund), the taxpayer can reinvest that gain in a Qualified Opportunity Fund within 180 days and elect to have the tax benefits available for that reinvestment.

8. What happens if a qualified opportunity zone investment is sold after Dec. 31, 2028, when the opportunity zone designation of the designated opportunity zone areas is due to expire?

  • The Proposed Regulations propose a rule whereby a taxpayer can sell a qualified opportunity zone investment by Dec. 31, 2047, after holding it for at least 10 years and still make the election to pay no tax on the gain recognized on such a qualified opportunity zone investment, even if the designation of such area as a qualified opportunity zone has expired on Dec. 31, 2028.

9. What happens if a Qualified Opportunity Fund sells its qualified opportunity zone property during the taxpayer's holding period in the Qualified Opportunity Fund but then reinvests it in other qualified opportunity zone properties?

  • The Proposed Regulations clarify that the Qualified Opportunity Fund may reinvest the proceeds from the sale of its qualified opportunity zone property in other qualified opportunity zone properties within the time periods to be prescribed in upcoming regulations in order for the Qualified Opportunity Fund to continue to satisfy the 90 percent qualified opportunity fund asset test.
  • Future regulations will address the U.S. federal income tax treatment of any gains that the Qualified Opportunity Fund reinvests during such a period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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