Tax Law Update
Opportunity Zone (or “OZ”) investment was hailed in 2018 and 2019 as the hottest and most innovative way of attracting significant private capital to distressed communities in the United States and its territories by offering significant tax deferrals, reductions and exclusions to investors with capital gains willing to make these investments. Despite its promise, OZ investment stalled in 2018 and 2019 due to significant uncertainty over how the generous tax incentives enacted by Congress under the December 2017 Tax Cuts and Jobs Act would be implemented by the U.S. Internal Revenue Service (“IRS”). The Final Regulations issued by the IRS on December 18, 2019 (the “Final Regulations”) have addressed many areas of major concern for managers of “qualified opportunity funds” (“QOF”) and investors in those QOFs, opening the door for many more opportunities for these tax-advantaged investments. These Final Regulations are effective for tax years beginning after March 13, 2020; although an election may be made to apply the Final Regulations retroactively, which likely will be applied in most cases. (Where the Final Regulations are not elected and prior to effectiveness of the Final Regulations, the rules applicable to OZ investment continue to be those under the proposed regulations previously issued by Treasury and the IRS on October 29, 2018 and May 1, 2019 (the “Proposed Regulations”).
Orrick’s November 2019 client alert on Opportunity Zones and Qualified Opportunity Funds” Accelerating U.S. Community Impact Financing set forth the key elements of the tax benefits provided by investment in Opportunity Zones. In large part, these key elements remain unchanged:
The Final Regulations are divided into six parts, corresponding with operative sections of the Internal Revenue Code: (1) Section 1.1400Z2(a)-1 deals with the procedure for deferring gains and sets forth the operative definitions; (2) Section 1.1400Z2(b)-1 deals with the inclusion of gains that have been deferred; (3) Section 1.1400Z2(c)-1 deals with issues associated with QOF investments that have been held for at least 10 years and that are eligible for the tax exemption; (4) Section 1.1400Z2(c)-1 sets forth the requirements for QOZP ; (5) Section 1.1400Z2(d)-2 sets forth the QOZB Property requirements; and (6) Section 1.1400Z2f)-1 deals with the reinvestment of proceeds and establishes a number of anti-abuse rules.
The focus of this Client Alert are certain of the changes introduced by the Final Regulations, which serve to encourage investment in operating businesses and commingled funds, arguably the areas which hold the most promise for positively impacting existing communities in the Opportunity Zones:
Changes and Clarifications Introduced by the Final Regulations
Better Rules for Operating Businesses
Added Flexibility for Qualifying Rules for QOZB: QOF investment in operating businesses are expected to be through QOZBs. By way of review, a QOZB is a trade or business that meets each of the following requirements:
(i) at least 50% of the total gross income of such entity must be derived from the active conduct of the trade or business in the QOZ. Under the Final Regulations, (i) this test can be satisfied based on where employees (which now includes independent contractors) are located (based on hours worked or compensation), based on the location of management and key tangible assets used in the business or based on facts and circumstances, all of which invites a wider range of businesses (operating business, start-up businesses, manufacturing businesses, tech businesses and others) to be able to be capitalized with OZ investment;
(ii) a substantial portion (i.e., at least 40%) of the intangible property of such entity must be used in the active conduct of the trade or business in the QOZ. According to the Final Regulations, intangible property is treated as used in an active trade or business if the use is normal, usual or customary in the conduct of the trade or business and the intangible property is used in the OZ in the business to contribute to the generation of gross income for the business. There may be uncertainty about the application of these principles in specific situations; and
(iii) less than 5% of the average of the aggregate unadjusted bases of the property of such entity must be attributable to nonqualified financial property (e.g., cash and cash equivalents). The Proposed Regulations provide a safe-harbor to allow capital contributed to the QOZB to be spent to develop a property over a period of 31 months, as long as there is a written plan and schedule in place for deploying the capital. Under the Final Regulations, clarity is provided that the 31-month spending period can be applied to a start-up operating business and can be extended to 62 months if there are multiple tranches of capital contributions to the QOZB.
Better Rules for Commingled Funds and Multi-Tiered Investment
Sales of Property by Individual QOZBs. Under the Proposed Regs, a QOF investor could only elect after a 10-year holding period to exclude gains from the sale of qualifying investments or property sold by a QOF operating in partnership or S Corporation form, but not property sold by its QOZB. This approach had a chilling effect on the formation of commingled funds that are invested in multiple properties or businesses, because it was very hard to plan a tax-free exit by the QOF for multiple assets at the same time in the future. The Final Regulations provide that capital gains from the sale of property by a QOZB that is held by such a QOF may also be excluded from income as long as the investor’s qualifying investment in the QOF has been held for 10 years. In such event, the amount of gain from such a QOF’s or its QOZB’s asset sales that an investor in the QOF may elect to exclude each year will reduce the amount of the investor’s interest in the QOF that remains a qualifying QOF investment eligible for further QOF tax benefits.
Disposition by QOF Investor of Stake in Multi-Asset Funds. --. As noted above, the rule of the Proposed Regulations made the tax exemption available only upon disposition by a QOF investor of its QOF interest after the 10-year holding period, which often led to structuring issues for designing a QOF with multiple properties or QOZB’s. The Final Regulations significantly expand the proposed rules by providing for gain exclusion for asset sales. In particular, the Final Regulations permit a taxpayer that invests in a QOF partnership or QOF S corporation to make an election for each taxable year to exclude a QOF’s gains and losses from all sales or exchanges in the taxable year, rather than just capital gains or losses. Thus, the Final Regulations provide flexibility to sell the underlying assets, businesses, and real estate projects, rather than just selling their stakes in the funds or everything at once.
Distributions. The Final Regulations also clarify that certain distributions by a QOF to its investors may qualify for the exemption, and certain interim distributions offered prior to the end of the 10-year holding period may be made tax free to the extent an investor’s basis has been stepped up in an amount sufficient to cover the distribution (whether due to partnership tax allocations of profit and loss, an allocation of leverage incurred by the QOF, automatically upon payment of tax for the 2026 tax year, or otherwise).
Multi-tier Investment; Investment by Members of a Consolidated Group. Any U.S. taxpayer seeking to obtain the tax benefits offered by the OZ program must invest directly into a QOF rather than through an intermediary such as a fund-of-funds that might act to aggregate investors’ capital gains for purpose of investment in QOFs. The Final Regulations have not changed these rules but have loosened the rules relating to a consolidated group. Under the Proposed Regs, if a consolidated group wished to invest in a GOF, it had to do so through its parent but could not do so through other members of the consolidated group. The Final Regulations have eliminated this restriction. Now, any member of corporate consolidated group can make the investment.
Continuing Questions and Uncertainty
Although the Final Regulations have provided a great deal of useful guidance that is generally favorable to promoting OZ investment, many issues remain uncertain and will require further clarification by the Internal Revenue Service or through the development of practices. The preamble to the Final Regulations specifies certain areas for future guidance. Among the areas where practical issues continue are the manner for integrating partnership tax accounting rules with OZ accounting, FIRPTA withholding tax, the consequences of failing to comply with the 31-month plan for spending capital and other violations of tax requirements, e.g., 70%, 40%, 50% tests, and more.
The issuance of Final Regulation to implement the Opportunity Zone program is an important step in providing certainty to QOF investors and managers and the QOZBs in which they invest. With added rules providing flexibility to operating businesses and commingled funds, many in the industry expect a growth in QOFs attracting private capital to a variety of businesses that go well beyond the OZ real estate developments seen in 2018 and 2019 and provide diverse place-based investment and community development for the benefit of low-income communities throughout the U.S. and its investors.