From the Land of OZ: Equity Investments into QOFs Up Sharply in the last 6 months of 2021!

According to reporting this week from Novogradac, Qualified Opportunity Fund (“QOFs”) investments were sharply up in final 6 Months of 2021. While this is not overly shocking given the expiration of the 10% reduction benefit under the OZ Act on 12-31-21, the amount of deal flow and capital investment continues into 2022 at a fast and furious pace (and we are not talking cars here).

Per the report, Qualified Opportunity Funds raised a eye-popping $6.88 Billion in equity in the final six months of 2021, the largest quarterly amount raised in any period since the inception of the OZ program in 2018. 

As of 12-31-21, total OZ equity from these QOF funds increased to approximately $24.4 Billion.  Note, this equity is often leveraged with debt in order to build or buy projects which likely results in total project costs of these investments being at least $100 Billion.

Novogradac collects data from Qualified Opportunity Funds that voluntarily provide information to them on an ongoing basis.  One of the features of the OZ Act that we often hear criticism of is the lack of required reporting on key performance indicators like funds flow, job creation, total project cost, etc.  As such, while the volume of investment from Qualified Opportunity Funds that have been tracked is impressive, the totals do not represent the total market share of investments given the voluntary nature of the disclosure. 

We are often asked, where is all the investment going on?

Per the report, the states with the most OZ investment to date have been California ($2.4 Billion); Arizona ($1.35 Billion); Texas ($1.12 Billion), New York ($1.05 Billion) and Florida ($784 Million).  Moreover, there are 20 cities that have at least $200 million in planned or on-going Qualified Opportunity Fund investments, including Washington, DC ($740 Million); Los Angeles, CA ($679 Million); New York, NY ($642 Million); Nashville, TN ($521 Million), and Austin, TX ($455 Million) as the top five cities for OZ investments. 

If you would like to review a copy of the report – a link is attached : https://www.novoco.com/notes-from-novogradac/novogradac-report-qof-investment-sharply-final-six-months-2021-20-cities-have-200-million-or-more

Duane Morris has an active Tax Credits and Opportunity Zone Team to help organizations and individuals plan, respond to, and invest in Opportunity Zones and low income areas throughout the USA, including the US Virgin Islands and Puerto Rico using tax credit equity and standard equity. We have closed over 173 OZ deals since their inception and are actively working on over 34 OZ projects for owner/developers, investors and business owners at the moment. We would be happy to discussion your proposed project with you.

Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

If you have any questions about this post, please contact Brad A. Molotsky, Art Momjian, Scott Gluck, Lee Potter, Anastasios Kastrinakis, or the attorney in the firm with whom you are regularly in contact.

PSEG invests in a 25% interest of Ocean Wind – the $1.7B Wind Project off the NJ Coast

Public Service Enterprise Group announced earlier today, Friday, December 4, 2020, that it will invest in a 25% share of Ocean Wind, the $1.7 billion, 1,100-megawatt wind energy project off the coast of Atlantic City, New Jersey.

Ocean Wind is owned by Ørsted North America, and is anticipated to provide 500,000 households with energy when operational.

It’s the first of three tranches of 7,500 megawatts in offshore wind the Murphy administration is aiming to have in the state’s energy capacity by 2050.

The operation and maintenance of the Ocean Wind facility is expected to create over 65  full-time jobs during the 25-year lifecycle of the project, according to Gabriel Martinez, a spokesperson for Ørsted.

In June, according to NJBIZ, Gov. Phil Murphy unveiled a 200-acre “wind port” in Salem County on the Delaware Bay, where the wind turbines will be produced and shipped out across the Jersey Shore.

The facility will be located in Lower Alloway Creek Township, adjacent to PSEG’s Hope Creek Nuclear Generation Station – at a facility PSEG already owns.  The site is within a mile of a designated federal Opportunity Zone and could spur some additional development within the nearby zone.

Duane Morris has an active Opportunity Zone Team to help CDCs and other organizations and individuals plan, respond to, and invest in Opportunity Zones and low income areas throughout the USA, including the US Virgin Islands and Puerto Rico. We have closed over 45 OZ deals since their inception and are actively working on over 54 OZ projects for owner/developers, investors and business owners.  We would be happy to discussion your proposed project with you.  Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

If you have any questions about this post, please contact Brad A. Molotsky, Scott Gluck, Lee Potter, Keli Isaacson Whitlock, AK Kastrinakis, Art Momjian or the attorney in the firm with whom you are regularly in contact.

Bill to require the SBA to train Field Representatives regarding Opportunity Zones and OZ Benefits introduced in the House

Reps. Dan Bishop, R-N.C., and William Timmons, R-S.C., introduced the Increasing Opportunities for Small Businesses Act of 2020 (H.R. 8120).

According to Novogradac, the Bill would require the Small Business Administration (SBA) to train representatives on the opportunity zones (OZ) incentive. Trained field representatives would serve as a point of contact for OZ questions and resources, educate elected leaders within their areas and hold an annual seminar in each state to educate managers of qualified opportunity funds, qualified opportunity zone businesses, state and local government officials and other interested persons on how to benefit from OZ investments.

The director of each SBA regional office would be required to submit an annual report on the success of trained field representatives, including any problems and best practices.

Continued positive steps by the House and the White House on directing various federal agencies to prioritize resource allocations and program dollars to help low income areas in various OZs throughout the US, Puerto Rico and the Virgin Islands.

Duane Morris has an active Opportunity Zone Team to help organizations and individuals plan, respond to, and invest in Opportunity Zones throughout the USA, including the US Virgin Islands and Puerto Rico. We have closed over 45 OZ deals since their inception and are actively working on over 54 OZ projects for owner/developers, investors and business owners.  We would be happy to discussion your proposed project with you.  Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

If you have any questions about this post, please contact Brad A. Molotsky, Scott Gluck, Lee Potter, Keli Isaacson Whitlock, AK Kastrinakis, Art Momjian or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe.

Federal GSA prioritizes Opportunity Zones for Owned and Leased Assets – Wow!

On Tuesday, August 25, 2020, the General Services Administration (“GSA”) announced that it will increase its investment in opportunity zones with owned and leased federal buildings, following an executive order that President Donald Trump signed Monday.

The order directed the GSA to prioritize opportunity zones and other distressed communities in federal agency moves to help bring new economic activity to the neighborhoods and to save taxpayer money by occupying more affordable real estate.

“We are excited to now officially include qualified Opportunity Zones in the list of priorities we formally assess when selecting sites,” GSA Administrator Emily Murphy said in a release. “Yesterday’s Executive Order is consistent with GSA’s long term role in spurring economic development within the communities where our buildings are located.”

The GSA owns or leases 376.9 Million Square feet in 9,600 buildings in over 2,200 communities. As the GSA is the largest owner and user of space in the US by far, this is a very significant development in OZ world.

The opportunity zone program was passed into law in 2018 as a way to incentivize investors to place their equity investments into underserved communities. According to BisNow, beyond using the government’s real estate footprint, the Trump administration has sought to support the opportunity zone program through other methods. The Department of Education last week launched a grant program to help institutions of higher education recover from the coronavirus crisis, and it gives priority to applicants who expand educational access to students in opportunity zones.

Duane Morris has an active Opportunity Zone Team to help organizations and individuals plan, respond to, and invest in Opportunity Zones throughout the USA, including the US Virgin Islands and Puerto Rico. We have closed over 45 OZ deals since their inception and are actively working on over 54 OZ projects for owner/developers, investors and business owners.  We would be happy to discussion your proposed project with you.  Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

If you have any questions about this post, please contact Brad A. Molotsky, Scott Gluck, Lee Potter, AK Kastrinakis, Art Momjian or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe.

Whopper of a New Markets Tax Credit (NMTC) Allocation from US Treasury ($3.5B) – these funds can be matched with OZ Funds

The U.S. Department of the Treasury’s Community Development Financial Institutions Fund (CDFI Fund) announced $3,548,485,000 in New Markets Tax Credits that are intended to spur investment and economic growth in low-income urban and rural communities nationwide.

A total of 76 Community Development Entities (CDEs) were awarded tax credit allocations, made through the calendar year (CY) 2019 round of the New Markets Tax Credit Program (NMTC Program).

“Today’s action demonstrates the Administration’s commitment to promoting economic growth and jobs in distressed communities, and to ensuring that every American can get back to work as quickly as possible,” said Treasury Secretary Steven T. Mnuchin.

”For almost 20 years, the New Markets Tax Credit has attracted private capital into businesses and communities as they recover from significant shocks to our economy,” said CDFI Fund Director Jodie Harris. “Projects that spur job creation, enable access to technology infrastructure and develop community facilities like federal qualified health centers, are examples of how New Markets Tax Credit investments are especially critical for low-income communities across the country.”

The 76 CDEs receiving awards were selected from a pool of 206 applicants that requested an aggregate total of $14.7 billion in tax credit allocation authority. The award recipients are headquartered in 30 different states and the District of Columbia. One-fifth (20%) of the investments will be made in rural communities. It is estimated that these award recipients will make more than $706 million in New Markets Tax Credit investments in non-metropolitan counties.

Yesterday’s announcement brings the total amount awarded through the NMTC Program to $61 billion. Historically, NMTC Program awards have generated $8 of private investment for every $1 invested by the federal government.

Through the end of fiscal year 2018, the most recent data available, NMTC Program award recipients deployed nearly $52.5 billion in investments in low-income communities and businesses; with impacts such as the creation or retention of more than 836,000 jobs, and the construction or rehabilitation of more than 218.3 million square feet of commercial real estate.

As we have discussed here before, NMTC funds CAN be matched with Opportunity Zone equity as OZ deals can stack with other tax programs to really drive a return for OZ projects.  Worthy of consideration. 

If you have any questions about this blog post or other NMTC or OZ questions, do not hesitate to reach out, we are happy to discuss at your convenience.  Be well and stay safe. 

IRS issues new Opportunity Zone Guidance and Provides Additional Time and Flexibility

Thanks to the urging of Senator Tim Scott (R-SC), the IRS issued revised guidance in Notice 2020-39 and provided some additional flexibility for Opportunity Zone investors and Qualified Opportunity Zone Funds.

The key take aways are as follows:

1. EXTENSION OF 180-DAY INVESTMENT PERIOD: Under the OZ regulations, an individual who realizes a gain, is required to invest that gain into a QOF within 180-days of realizing the gain (or such other date as outlined in the regulations). The new relief provides for the 180-day investment period to be automatically extended until December 31st, 2020 if it would have originally expired after April 1st, 2020 and before December 31st, 2020. Example: If any individual realized a gain on 12/15/2019, their investment period would have expired in May, 2020. That date is now automatically extended to December 31st, 2020.

2. EXTENSION OF 90% TEST FOR QOF: Under the OZ regulations, a QOF in required to invested 90% of its assets into qualifying opportunity zone property within 6 months and at the end of the taxable year (i.e., December 31st for a calendar year QOF). If the 90% test is not met, then the QOF is subject to penalties on a portion of the funds in the QOF. The new relief provides that if either the first 6 month testing date or the final year end testing date occurred between April 1st, 2020 and December 31st, 2020, then the failure to satisfy the 90% test is deemed to be due to reasonable cause and, as such, no penalties will be levied.

3. EXTENSION OF 30 MONTH SUBSTANTIAL IMPROVEMENT TEST: Under the final OZ regulations, one of the way tangible property qualifies as qualified opportunity zone business property is to meet the “substantially improved” test within 30 months of acquisition. The new relief provides for a tolling of the 30-month period beginning April 1st, 2020 and ending December 31st, 2020. In other words, properties that are acquired during or that have previously been acquired within an opportunity zone after 1-1-18 and which are under construction will be provided with an additional 9 months to satisfy the substantial improvement test.

The Notice also discusses the 12 month reinvestment requirement upon a sale and the up to 24 months of additional time under a “working capital plan” for properties located within federal declared disaster areas (note, all 50 states and Puerto Rico, the US Virgin Islands and Guam have been declared federal disaster areas in connection with COVID-19).

If you have any questions or thoughts, please do not hesitate to reach out via email or text to my cell.  Best regards and be well. 

A copy of the IRS Notice can be found here – IRS Notice 20-39

Over and out from the Land of OZ.  -Brad

From the Land of OZ – 24 pages of clarifying OZ regulations from Treasury

Good morning/afternoon friends and hope you and yours are doing well and staying healthy in these trying times.

A potential ray of sunshine – which is still being reviewed. Yesterday, without a lot of fanfare or warning for that matter, the Treasury Department issued 24 pages of clarifying regulations to the Opportunity Zone Program.

Unfortunately, rather than state what the impact of the changes were intending to do, the release replaces this word with that word and this time period with that time period. Our team is working on the import of the language changes and will have an explanatory Alert put together in the coming days but wanted folks to be aware in case they want to read it for themselves in the interim.

For you industrious types (I know who you are :)) – https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-07013.pdf.

Happy to discuss any questions or concerns on this or other topics or just to catch up and see that you are doing ok, just email at bamolotsky@duanemorris.com.

Stay safe. Be vigilant.

House Legislation Would Establish OZ Reporting Framework and Penalties; Senate Bill Would Limit Application of OZs

While impeachment discussions continue to garnering most of the headlines, Representatives Ron Kind, D-Wis., Mike Kelly, R-Pa., and Terri Sewell, D-Ala., introduced legislation in the House to establish a reporting framework, disclosure requirements and a penalty structure for qualified opportunity funds (QOFs).

Their Bill, the “Opportunity Zone Accountability and Transparency Act”, would mandate that QOFs annually report assets; their aggregate amount of qualified OZ stock, OZ partnership interests and OZ business property; and provide details about the types of OZ businesses for which the QOF holds business property. According to Novogradac, the legislation would also institute a $500 daily fine for failure to file correct information and would require the Treasury Department to collect and compile statistical information on each OZ, including the number of QOFs that have invested in each OZ.

Across the way in the Senate, Senator Ron Wyden, D-Ore., introduced the “Opportunity Zone Reporting and Reform Act”. Senator Wyden’s bill would require information reporting from qualified opportunity funds (QOFs), end the designation of some 200 different opportunity zones (OZs), clarify some terms used in the OZ incentive and require a report from the Government Accountability Office (GAO) on the effectiveness of the incentive.

The Senate Bill would require QOFs to report in 9 areas, including:
– providing information on the amount and composition of assets, the names and taxpayer identification numbers (TINs) of investors along with the amount and dates of their investments;
– which opportunity zones the funds have invested in;
– the value of qualified OZ stock, partnership interests and business property;
– the value of any tangible or intangible property held by the QOF;
– the NAICS code of any Qualified Opportunity Zones Businesses (QOZBs) conducted by the fund or any corporation or partnership in which the fund holds an interest; and
– for QOZBs conducted by the fund or by a controlled corporation or partnership, the value of tangible and intangible property (including cash) and the average monthly full-time employees of the QOZB.

The Senate legislation, if enacted, would also end the OZ designation for all “contiguous zones” (a change that was added in the April 2018 regulations) that were named OZs, but which are not low-income and would define the term “substantially all” to mean “not less than 90 percent.” (i.e., effectively changing the QOZB asset test from 70% to 90%). The legislation would also require QOFs to make their reports public on the Internet and would require that the IRS maintain a public list of all QOFs.

The Senate legislation would also expand the application of “sin businesses” to disallow investments in private planes, along with skyboxes and luxury boxes. Prohibited investments would also be expanded to include sports stadiums, self-storage facilities, and housing developments that are un-affordable to existing zone residents.

While the proposed legislation would remove certain zones (approximately 200) as not being within what the Bill’s author believed to be in the spirit of the OZ legislation given the incomes and demographics that now are located within these “wealthy” zones, the legislation then allows states to designate an equal number of new zones which could be added to offset the lost zones. These new zones would remain on the same timeline as the zones originally designated in 2018, with their designations expiring at the end of 2028.

The legislation would also modify the Treasury letter ruling that did not require a QOF to include the value of land for purposes of calculating “substantial improvement” and would also impose a penalty of $10,000 on funds or investors failing to comply with their respective reporting requirements, with exceptions for reasonable cause. Penalties would be doubled for taxpayers found to be intentionally disregarding their reporting requirements.

While it is clearly too early to call whether these two Bills will move forward to a debate and/or passage, at the moment Republicans in the Senate are believed to be firmly against the proposed Senate Bill.

We will keep an eye on these proposed Bills and keep you apprised as things move, if they move on this front. In the meanwhile, if you have any questions or concerns, please do not hesitate to contact us at bamolotsky@duanemorris.com.

–Brad A. Molotsky, Esq.

Opportunity Zones – Additional States Continue to Join the Growing List of Places (39 States in All) Following Federal Form

Busy times continue in the Opportunity Zone world now that we have gotten past the clarion call of 2018 partnership rollovers into Qualified Opportunity Funds and Qualified Opportunity Zone Businesses that occurred on or before June 28, 2019. In our little corner of the world, deals are getting closed and new engagements happening, in particular on the business side of the ledger and some on the community impact side as well. Interesting and exciting stuff.

Based on my conversations with friends and colleagues at KPMG (thanks team for your continued excellent efforts) regarding the various states and their conformity with the federal OZ program – as of July 14th, 39 states for corporations and 33 states for individuals have elected to follow form with Pennsylvania being the latest to join the hit parade as of last week:

For Corporations:
— 39 states currently are conforming (rolling or updated state IRC conformity; AZ and MN are recent changes; AZ retroactively conforms starting TY18; HI conforms starting in TY19; IA conforms starting in TY19; MN might be retroactive but DOR guidance has not been issued yet)
— 2 states didn’t update IRC conformity
(CA, NH)
— 1 state updated IRC conformity but decoupled from IRC 1400Z (NC)

For Individuals:
— 33 states currently conforming (rolling or updated state IRC conformity; AZ and MN are recent changes; AZ retroactively conforms starting TY18; HI conforms starting in TY19; IA conforms starting in TY19; MN might be retroactive but DOR guidance has not been issued yet)
— 1 state didn’t update IRC conformity (CA)
— 1 state updated IRC conformity but decoupled from IRC 1400Z (NC)
— 6 states where IRC conformity is different for personal income tax or only have selective IRC conformity (AL, AR, MA, MS, NJ, PA) of which three do not conform (AL, MA, MS), one conforms (NJ), one will conform (PA for TYB 1/1/20), and one conforms but only with respect to QOZs located within this state (AR)

Check it out and let us know if you have any questions or need help on your various deals and transactions.

Brad A. Molotsky, Duane Morris LLP

Opportunity Knocks – 2nd Set of Of Opportunity Zone Regulations Issued by Treasury

On April 17th the Department of Treasury released a second set of proposed regulations for the Opportunity Zone legislation (the first set of regulations was released in October, 2018) which is intended to encourage economic growth and investment in designated distressed communities (qualified opportunity zones) by providing Federal income tax benefits to taxpayers who invest new capital in businesses located within qualified opportunity zones through a Qualified Opportunity Fund.

The 169 pages of proposed new regulations provide much needed guidance to encourage the future use of the opportunity zone tax benefit and specifically provide guidance for opportunity zone businesses. The following are the highlights of the proposed regulations:

1. Reinvestment of Proceeds from a sale or disposition. A qualified opportunity fund (“QOF”) has 12 months from the time of the sale or disposition of qualified opportunity zone property or the return of capital from investments in qualified opportunity zone stock or qualified opportunity zone partnership interests to reinvest the proceeds in other qualified opportunity zone property before the proceeds would not be considered qualified opportunity zone property with regards to the 90-percent asset test.

2. Real Property straddling an Opportunity Zone and a Non-Opportunity Zone. A business that purchases real property straddling multiple census tracts, where not all of the tracts are designated as a qualified opportunity zones may satisfy the opportunity zone business requirements if the unadjusted cost of the real property inside a qualified opportunity zone is greater than the unadjusted cost of real property outside of the qualified opportunity zone.

3. Safe Harbors for the Fifty Percent (50%) Income Test for Qualified Opportunity Zone Businesses (“QOZBs”).

The proposed regulations provide three safe harbors and a facts and circumstances test for determining whether sufficient income is derived from a trade or business in a qualified opportunity zone for purposes of the 50-percent test.

a. The first safe harbor requires that at least fifty percent (50%) of the services performed (based on hours) for such business by its employees and independent contractors (and employees of independent contractors) are performed within the qualified opportunity zone.

b. The second safe harbor provides that if at least fifty percent (50%) of the services performed for the business by its employees and independent contractors (and employees of independent contractors) are performed in the qualified opportunity zone, based on amounts paid for the services performed, the business meets the fifty percent (50%) gross income test.

c. The third safe harbor provides that a trade or business may satisfy the fifty percent (50%) gross income requirement if: (1) the tangible property of the business that is in a qualified opportunity zone and (2) the management or operational functions performed for the business in the qualified opportunity zone are each necessary to generate fifty percent (50%) of the gross income of the trade or business.

d. Finally, taxpayers not meeting any of the other safe harbor tests may meet the fifty percent (50%) requirement based on a facts and circumstances test if, based on all the facts and circumstances, at least fifty percent (50%) of the gross income of a trade or business is derived from the active conduct of a trade or business in the qualified opportunity zone.

Note that the seventy percent (70%) tangible property test that requires that seventy percent (70%) of the tangible property of the QOZB be located within the Opportunity Zone continues to be operative for QOZBs.

4. Working Capital Plans – the 31 Month Test. The following two changes were made to the safe harbor for working capital.

a. First, the written designation for planned use of working capital now includes the development of a trade or business in the qualified opportunity zone as well as acquisition, construction, and/or substantial improvement of tangible property.

b. Second, exceeding the 31-month period does not violate the safe harbor if the delay is attributable to waiting for government action the application for which is completed during the 31-month period.

5. Measurement Periods. To help startup businesses the proposed regulations allow a qualified opportunity fund to satisfy the ninety percent (90%) without taking into account any investments received in the preceding 6 months provided those new assets being held in cash, cash equivalents, or debt instruments with term 18 months or less. This flexibility is intended to alleviate concerns with a QOF receiving additional capital gain funds right before a testing period and not being able to deploy the funds prior to the testing period.

6. Exclusion Elections. A taxpayer that is the holder of a direct qualified opportunity fund partnership interest or qualifying qualified stock of a qualified opportunity fund S corporation may make an election to exclude from gross income some or all of the capital gain from the disposition of qualified opportunity zone property reported on Schedule K-1 of such entity, provided the disposition occurs after the taxpayer’s 10-year holding period.

7. Continued OZ treatment after Death. Neither a transfer of the qualifying opportunity fund investment to the deceased owner’s estate nor the distribution by the estate to the decedent’s legatee or heir would result in the loss of the opportunity fund investment benefit.

8. Vacant Property. Where a building or other structure has been vacant for at least five (5) years prior to being purchased by a qualified opportunity zone business or qualified opportunity zone business, the purchased building or structure will satisfy the original use requirement.

9. Leased Property – QOZBs; Original Use; Related Party Permissions; Anti-Abuse Rules. Leased property may be treated a qualified opportunity zone business property if the following two general criteria are satisfied.

a. First, leased tangible property must be acquired under a lease entered into after December 31, 2017.

b. Second, substantially all of the use of the leased tangible property must be in a qualified opportunity zone during substantially all of the period for which the business leases the property.

The proposed regulations, however, do not impose an original use requirement with respect to leased tangible property and do not require leased tangible property to be acquired from a lessor that is unrelated. However, the proposed regulations provide one limitation as an alternative to imposing a related person rule or a substantial improvement rule and two further limitations that apply when the lessor and lessee are related.

a. First, the proposed regulations require in all cases, that the lease under which a qualified opportunity fund or qualified opportunity zone business acquires rights with respect to any leased tangible property must be a “market rate lease.”

b. Second, if the lessor and lessee are related, a qualified opportunity fund or qualified opportunity zone business at any time make not make a prepayment to the lessor relating to a period of use of the leased tangible property that exceeds 12 months.

c. Third, the proposed regulations do not permit leased tangible personal property to be treated as qualified opportunity zone business property unless the lessee becomes the owner of tangible property that is qualified opportunity zone business property and that has a value not less than the value of the leased personal property. This acquisition of this property must occur during a period that begins on the date that the lessee receives possession of the property under the lease and ends on the earlier of the last day of the lease or the end of the 30-month period beginning on the date that the lessee receives possession of the property under the lease.

d. Finally, the proposed regulations include an anti-abuse rule to prevent the use of leases to circumvent the substantial improvement requirement for purchases of real property (other than unimproved land). In the case of real property (other than unimproved land) that is leased by a qualified opportunity fund, if, at the time the lease is entered into, there was a plan, intent, or expectation for the real property to be purchased by the QOF for an amount of consideration other than the fair market value.

It is also worth noting that improvements made by a lessee to leased property satisfy the original use requirement and are considered purchased property. Thus, a tenant in a building can also satisfy the QOZB tests noted under the OZ Act.

10. Intangible Assets. For purposes of determining whether a substantial portion of intangible property of a qualified opportunity zone is used in the active conduct of a trade or business, the term “substantial portion” means at least 40 percent.

11. Unimproved Land. Unimproved land that is within a qualified opportunity zone and acquired by purchase is not required to be substantially improved if it is used in a trade or business of the QOF or the QOZB.

12. Investments Held by Funds. Funds have been provided with additional flexibility to hold more than one investment within a fund if they are structured appropriately.

13. Inventory. Inventory in transit to a QOZB within an OZ will be treated as tangible property that counts for purposes of the seventy percent (70%) test for QOZBs even if it is not within the OZ so long as it is on the way.

14. Debt Financed Distributions. Guidance has been provided under the new regulations regarding refinancing and distributions to partners/members which would permit appreciated portions of the property that have been refinanced to be distributed to the partners or members of the QOF on a tax free basis so long as the distribution is not in excess of the investors basis.
We will continue to review the new regulations and intend to issue additional commentary on it. In the interim, feel free to contact us to discuss any questions you have or transactions you are considering in this space.

Brad A. Molotsky and Art Momjian, Co-Heads, The Opportunity Zone Team – Duane Morris LLP

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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