The Opportunity Zone Program: Treasury Designates Opportunity Zones in Three Territories and 15 States, including Arizona, California and Colorado

by Snell & Wilmer
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On April 9th, the U.S. Treasury Department designated Opportunity Zones in three territories and 15 states, including Arizona, California and Colorado. This represents the Treasury Department’s first formal designations under the Opportunity Zone Program, with the remainder of U.S. states to follow over the next month. The following alert provides an overview as to what the Opportunity Zone Program entails, including the benefits of this new brand of tax incentives.

Buried in the recently enacted Tax Cuts and Jobs Act (the “Tax Act”) was the creation of the Opportunity Zone Program. This new tax incentive program is designed to encourage private capital investment in Opportunity Zones – which are designated distressed communities throughout the United States (including any possession of the United States). Specifically, the Opportunity Zone Program seeks to attract private capital for investment in projects and businesses that are located in economically distressed areas by providing significant tax incentives to investors in the form of: (1) the deferral of taxable gain, (2) a partial reduction in the amount of the deferred taxable gain, and (3) the exclusion of gain resulting from appreciation in the investors subsequent capital investment.

Modeled after the highly successful New Markets Tax Credit Program (“NMTC Program”), which was also designed to encourage private capital investment in distressed communities, the legislation underlying the Opportunity Zone Program was originally proposed in early 2017 as the bipartisan Investment in Opportunity Act, S. 293, 115th Cong. (2017), by Representative Pat Tiberi (R), Representative Ron Kind (D), Senator Tim Scott (R), and Senator Cory Booker (D). Unlike the NMTC Program and other tax credit incentives, the Opportunity Zone Program does not require an overall cap in the amount of its tax subsidy, and as a result, the potential investor base is unprecedented with an estimated $6 trillion in investment potential. Essentially, anyone who recognizes a gain is a potential investor in the Opportunity Zone Program. 

Despite the prospective magnitude of this legislation, the proposed Investment in Opportunity Act and the Opportunity Zone Program enacted as part of the Tax Act have largely flown under the public’s radar. This is not the case anymore. Recently, the New York Times, USA Today, and state and local news agencies have published articles touting the benefits of this attractive program, which have generated increasing interest from governmental authorities, fund managers, investors, and eligible business recipients alike. 

In order to understand how to benefit from the Opportunity Zone Program, one needs to understand several critical components, which are as follows: (1) the creation of Opportunity Zones (“O-Zones”), (2) the formation of Opportunity Funds (“O-Funds”), (3) the parameters surrounding investments that can be made by the O-Funds in distressed communities, and (4) the tax benefits available to O-Fund investors.

Opportunity Zones

As stated above, the Opportunity Zone Program is similar in many respects to the NMTC Program, which also provides a tax subsidy to encourage private capital investment in projects and businesses located in population census tracts that are considered to be distressed based upon certain economic data (“Distressed Census Tracts”). These same Distressed Census Tracts are eligible to be designated as O-Zones. 

Pursuant to the Tax Act, each of the 50 states, the District of Columbia, and all U.S. possessions have the ability to nominate up to 25 percent of these Distressed Census Tracts within their respective state, district, or territory as O-Zones. In addition, certain population census tracts that do not qualify as Distressed Census Tracts are eligible to be nominated as O-Zones if they are contiguous to a designated Distressed Census Tract, thus increasing the potential for O-Zones in areas that are ineligible for other tax incentive programs. The O-Zone nominations were required to be submitted to the Treasury Department by March 21, 2018, unless a 30-day extension was requested. More than half the jurisdictions requested 30-day extensions. Once the population census tracts are nominated, the Treasury Department has 30 days to certify such nomination and designate the population census tracts as O-Zones. As stated above, Treasury has designated the nominated population census tracts of 15 states, including the states of Arizona, California and Colorado, and three territories as O-Zones. Following the completion of the Treasury Department’s certification process, approximately 8,700 population census tracts in the United States will have the O-Zone designation.

Opportunity Funds

In order to participate as an investor, a taxpayer recognizing a gain from the sale or exchange of an asset must invest all or a portion of the gain in an O-Fund. An O-Fund is required to be either a corporation or a partnership for federal income tax purposes, be certified by the Treasury Department, and hold at least 90 percent of its assets in Opportunity Zone Property (discussed below). Compliance with the 90 percent requirement is tested twice per year. Although the structural parameters are relatively broad, it is likely that most O-Funds will be organized as limited liability companies or limited partnerships resembling private equity real estate funds since this has been an attractive investment vehicle for raising private capital in the past, especially where the capital is going to be deployed with respect to real estate investments.

In addition, 26 U.S.C. 1400Z-2, a new section of the Internal Revenue Code that codifies the opportunity zone provisions set forth in the Tax Act, provides that the Secretary of the Treasury Department will issue regulations with respect to the O-Fund certification process. The legislative history to the Tax Act provides that the certification process will be conducted in a manner similar to the process for allocating tax credits under the NMTC Program. At this time, however, no formal guidance has been issued, but the Treasury Department has indicated that it is working on issuing guidance on the certification process for O-Funds. 

Opportunity Zone Property 

As noted above, O-Funds must invest 90 percent of their assets in Opportunity Zone Property (“O-Zone Property”), which consists of the following: (1) certain stock, called “Opportunity Zone Stock,” (2) certain partnership interests, called “Opportunity Zone Partnership Interests,” and (3) certain business property, called “Opportunity Zone Business Property.” Effectively, the O-Fund can make an equity investment directly in an eligible domestic corporation, partnership, or limited liability company, or directly acquire Opportunity Zone Property so that the O-Fund is the direct owner of such property. Based on the known strictures of the Opportunity Zone Program at this time, it does not appear that an O-Fund can make a loan to satisfy the 90 percent requirement, and we suspect that most equity investments by the O-Fund will be in the form of preferred equity, similar to private equity and venture capital investments.

Opportunity Zone Stock and Partnership Interests

An investment in Opportunity Zone Stock or Opportunity Zone Partnership Interests involves the O-Fund making a direct investment in a domestic corporation, partnership, or limited liability company that constitutes an Opportunity Zone Business (an “O-Zone Business”) for “substantially all” of the O-Fund’s holding period of such equity. At this time, there is no definition of “substantially all” for this purpose, although some practitioners believe that similar rules to the NMTC Program will be employed here.

In order to qualify as an O-Zone Business, a number of requirements and restrictions similar to those applicable under the NMTC Program must be satisfied, including, but not limited to, a prohibition on certain “sin” businesses, such as private or commercial golf courses, country clubs, massage parlors, hot tub facilities, suntan facilities, racetracks or other facilities used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises. Two notable requirements under the Opportunity Zone Program are that a substantial portion of the intangible property of the business must be used in the active conduct of such business and that “substantially all” of the tangible property owned or leased by the taxpayer must be O-Zone Business Property (discussed below). The issuance of guidance in this area will be necessary for the successful deployment of capital by O-Funds.

Finally, because nonprofit corporations are not designed to have stockholders, practitioners do not believe that nonprofit corporations will be eligible to benefit directly from the Opportunity Zone Program. That said, it appears possible for an O-Fund to acquire Opportunity Zone Property and lease such property to a nonprofit corporation or for an O-Fund to enter into a joint venture (such as a limited liability company) with a nonprofit corporation. This would make it possible for nonprofit corporations to benefit from the Opportunity Zone Program. 

Opportunity Zone Business Property (O-Zone Business Property)

O-Zone Business Property is tangible property used in a trade or business that was acquired by purchase from an unrelated person after December 31, 2017. The original use of the O-Zone Business Property must either: (1) commence with the O-Fund (in the case of a direct purchase by the O-Fund) or the O-Zone Business (where the O-Fund invests in an O-Zone Business), or (2) substantial improvement must be made to the tangible property. The substantial improvement requirement will likely be necessary for projects involving real estate and requires that: (1) improvements are made to the tangible property during the 30-month period commencing on the acquisition date, and (2) the cost of the improvements must be at least as much as the purchase price for the property. 

In addition, during “substantially all” of the O-Fund’s holding period for such O-Zone Business Property (or, where the O-Fund invests in an O-Zone Business, the O-Zone Business’s holding period for such O-Zone Business Property), “substantially all” of the use of such property must be located in an Opportunity Zone. Again, we do not have the benefit of any guidance to assist in interpreting the “substantially all” requirements at this time, but will provide an update once guidance is issued by the Treasury Department. 

Tax Benefits to Investors

The Opportunity Zone Program provides three primary tax incentives to O-Fund investors: (1) the ability to defer federal income taxes on the gain arising from the sale or exchange of an asset, (2) the potential to reduce a portion of such gain by increasing the investor’s tax basis in the investment made in an O-Fund, and (3) the potential to eliminate the federal income taxes on all future appreciation of the O-Fund investment.

Election for Gain Deferral

To qualify for gain deferral under the Opportunity Zone Program, a taxpayer must invest all or a portion of the gain recognized from the sale or exchange of an asset with an unrelated person in an O-Fund within 180 days of the recognition event. The amount of gain to be deferred by the taxpayer (the “Deferred Gain”) is equal to the amount of cash invested in the O-Fund.

Under the Opportunity Zone Program, a recognition event with respect to the Deferred Gain occurs upon the earlier of: (1) the date that the taxpayer sells or exchanges his or her interest in the O-Fund, or (2) December 31, 2026. The gain to be recognized as income on December 31, 2026, is calculated as the lesser of: (1) the amount of the Deferred Gain, or (2) the fair market value of the taxpayer’s interest in the O-Fund. The amount of the Deferred Gain recognized is subject to partial reduction for a step-up in tax basis of the O-Fund investment. Specifically, if the investor holds his or her investment in the O-Fund for at least: (1) five years, then his or her tax basis in the O-Fund is increased by 10 percent of the Deferred Gain, and (2) seven years, then his or her tax basis in the O-Fund is increased by an additional 5 percent of the Deferred Gain.

Gain Exclusion

In addition to the favorable tax opportunities noted above, the program also allows investors realize tax-free appreciation on their O-Zone investment. Specifically, if the O-Fund investment is held for at least 10 years, the investor may elect to increase the tax basis of their investment to the investment’s fair market value on the date of disposition, thereby eliminating any taxable gain. Provided the investor is willing to maintain their investment for at least 10 years, the aforementioned tax free appreciation component sets the Opportunity Zone Program apart from traditional tax deferral mechanisms and other investment opportunities.

Example

Taxpayer sold stock in a corporation on March 1, 2018, to an unrelated person for $40 million. Taxpayer held the stock for 20 years and had a tax basis in the stock of $10 million on the date of sale. The Deferred Gain on the sale is $30 million. Taxpayer elects to defer the $30 million of Deferred Gain by investing $30 million in an O-Fund on May 1, 2018, i.e., within 180 days from the date of the sale of the stock, in exchange for a membership interest in the O-Fund. 

Taxpayer’s initial tax basis in the O-Fund membership interest is zero. If Taxpayer holds the membership interest in the O-Fund until March 1, 2023, Taxpayer will increase the tax basis of the membership interest in the O-Fund by $3 million, i.e., an amount equal to 10 percent of the Deferred Gain. If Taxpayer holds the membership interest in the O-Fund until March 1, 2025, Taxpayer will increase the tax basis of the membership interest in the O-Fund by an additional $1.5 million, i.e., an amount equal to 5 percent of the Deferred Gain, for a total basis of $4.5 million.

On December 31, 2026, Taxpayer is required to include a gain in the amount of $25.5 million in Taxpayer’s gross income, i.e., the $30 million of Deferred Gain reduced by Taxpayer’s $4.5 million stepped-up basis in the O-Fund investment. On April 1, 2028, Taxpayer’s membership interest in the O-Fund has a fair market value of $80 million and Taxpayer elects to increase its tax basis on the day the membership interest is sold by the Taxpayer for $80 million. Because of the election afforded to Taxpayer under the Opportunity Zone Program, Taxpayer will not have any taxable gain from such sale. Without this tax benefit, Taxpayer would be required to recognize a $50 million taxable gain.

Conclusion

The Opportunity Zone Program is an exciting new tax incentive program that offers substantial opportunities for its participants. In particular, the Opportunity Zone Program will provide opportunities for: (1) investors that want to defer gain from a recent sale and obtain tax-free appreciation from its investment in an O-Fund, (2) sponsors that want to form and operate an O-Fund, (3) property owners with assets located in O-Zones, and (4) businesses owners that desire to start-up or expand in an O-Zone.

The Treasury Department’s certification of Opportunity Zones nominated by the states, District of Columbia, and U.S. possessions will be completed in relatively short order. With any new program, there are many questions that still need to be answered. The Treasury Department has requested comments, and guidance and regulations are forthcoming. Once this guidance is issued, the Opportunity Zone industry will move quickly, and it is important not to be left behind.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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