QOF – Opportunity Zones – Insights From the Land of OZ

April 11, 2022 by Brad A. Molotsky

From the Land of OZ: Bi-Partisan OZ Bill Introduced in the House and the Senate – Wait, Whaaaattttt?

Yes, indeed, you have read it correctly. A bi-partisan (both Ds and Rs) and a bi cameral (dating us back to grade school – both the House and Senate) have announced an OZ bill that is intended to address multiple perceived issues in the OZ Act. Wow – both D’s and R’s and both branches of government – that has a nice sound to it doesn’t it?

The Bill is entitled the “Opportunity Zones Transparency, Extension and Improvement Act” was put forth late last week in both the House and Senate.

The Bill seeks to address a host of items including:

1. Reporting – it will require investors to file an annual report with the IRS. In my view not a big deal; QOZBs (qualified opportunity zone businesses) will be required to provide relevant reporting to their QOFs (the Fund) to enable the QOF to do its annual reporting. QOFs will be required to file their forms electronically with the IRS.

2. Penalties – the Bill includes penalties of $500/day for the QOF not filing a return that is complete and correct and up to $10,000 for a fund valued at up to $10M or less or $50,000 if $10M or more. The Bill also includes personal penalties on the individual investor for failure to file required forms under the OZ Act.

3. Treasury Reporting Out – the Secretary of the Treasury will be required to make publicly available a report on QOFs that includes various attributes of the QOFs like the dollar aggregate held in assets, the percentage of QOZ tracts that have investments; average Full Time Employees in each census tract; percentage of total investment in Real Estate and Other Property; aggregate residential units created and held by QOFs, aggregate dollar amounts of investments in each census tract. The secretary will also be required to report after the 6th year on various features of the OZ Act including job creation, poverty reduction, new business starts and other key performance indicators. Furthe reporting from Treasury will be required to compare five year incremental periods (years 1-5; 6-10; 11-15) with each other regarding features such as the rate of home ownership in the census tract, the number of business starts; employment creation; rate of home ownership; median family income; percentage of income spent on rent; etc.

4. Extension of Investment Period – the Bill is enacted, it would move back the expiration of the required investment end period from 12-31-2026 to 12-31-2028, a 2 year extension. This would enable an additional 2 year period to invest funds into a QOF and be eligible to participate in the OZ program.

5. 15% Basis Step Up – the 7 year holding period would be reduced to 6 years under the Bill.

6. Effect of the Extension and the Basis Step up Modification – if passed, the Bill would enable investments made in 2021 and 2022 to receive the 15% basis step up (as these investment would be held presumably for 6 years or more on 12-31-28; moreover, investments made in 2023 would be eligible for the 10% basis step up given the new ability to show a 5 year holding period.

7. Feeder Funds or Fund of Funds – the Bill would correct a technical glitch that prohibited QOFs from investing in other QOFs. If passed QOFs will be permitted to invest in other QOFs.

8. Dynamism Fund – the Bill will create a $1B state and community fund that presumably could be used as grant funds to kick start some OZ investments in various municipalities.

9. Removal of Certain High Income OZ Tracts – the Bill will require the “early sunset” of certain census tracts with high median family income statistics (i.e., tracts that should not have been placed into the OZ in the first place) . If a tract has a median family income (“MFI”) that exceed 130% of the national MFI would NOT retain their OZ status. The Bill provides for an appeal and ability of state officials to petition to have such tracts NOT sunset and allows state officials to replace retired zones with new eligible ones. Note, early stage investments that have already been made into these tracts to be retired, will KEEP their OZ status. That said, the QOF may NOT undertake new projects or enter into new trades or businesses if not already commenced. Treasury will be required to publish a list of affected tracts within 12 months of the passage of the Bill.

10. Inclusion of Certain Brownfield OZ Tracts – the Bill allows for the limited inclusion of new tracts if the tracts are industrial, are adjacent to OZs, have zero population and which are considered to be “brownfields” as defined by the EPA. This addition is intended to allow for the limited expansion of OZs onto adjacent brownfields that may not have been included to incentivize brownfield clean up and revitalization.

On balance, the Bill gives MUCH more than it potentially takes away via the 130% of MFI tracts that may be disqualified. A 2 year extension on the time period to invest additional capital gains AND the ability to get 15% and 10% basis step up eligibility is a HUGE win for the OZ community and will likely drive more capital into the OZ marketplace given the basis step up and the additional 2 year period to garner and invest capital gains. The additional reporting obligations while seemingly a lot, really do not add much more substantive work for the QOF Manager and the Treasury required reporting out will allow Funds and Managers to show the value of their work and their key performance indicators when it comes to job growth and income and alleviating or reducing poverty in various census tracts. Necessary reporting and helpful data for future decisions on the efficacy of the program and how successful it will be!

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 196 OZ deals since their inception and are actively working on over 31 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, Robert Montejo, Scott Gluck, Lee Potter, Anastasios Kastrinakis, or the attorney in the firm with whom you are regularly in contact.

February 15, 2022 by Brad A. Molotsky

OZ Filing Deadlines Approaching – Make sure to connect with your tax filer on who is doing what!

Friends and colleagues, a quick reminder which you are likely aware of, but in the “let’s be sure” category:

2021 QOFs – If you created a QOF (a Qualified Opportunity Zone fund) in 2021, your first tax return will be due in 2022, likely next month on March 15^th . Reminder that it is critical to file the Form 8996 with your filing or the IRS will NOT treat you as a fund and the OZ will not work for your project or your business. IMPORTANT to review with your tax filer.

2018, 2019 and 2020 QOFs – for QOFs formed in 2018, 2019 and 2020, you will have your normal annual compliance filing with the IRS for the QOF; please again make sure you have clarity with your tax filer on who is filing this required piece of paper.

Personal Tax Filings for the Investor – if you have invested in a QOF in 2021, then you need to file with the IRS a Form 8997 that advises the IRS that you have invested in a QOF along with a deferral election form which will effectively defer your tax on your OZ eligible investment until 12-31-2026. These forms should be filed with your personal tax return on April 15, 2022.

Note, if you are involved in deals with lower tiered QOZBs (Qualified Opportunity Zone Businesses), the QOZB does not need to file anything with the IRS but (and a big BUT), they do need to do compliance testing on June 30th and December 31st of each year and report such testing to their QOF. Please make sure this is occurring for your investments.

Apologies for being slightly over protective of you here but a few QOFs and investors in the past have missed these deadlines or their accountant was not aware that they were supposed to be filing the relevant form. As such, we wanted to make sure you all get your signals straight and that we avoid any crossed OZ wires.

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.

Take care and stay safe.

April 19, 2021 by Brad A. Molotsky

OZ: NY moves to reduce certain state Opportunity Zone benefits for NY deals – Smart, Necessary or Something Else?

New York legislators have moved forward in their 2021 budget process to limit some of the state Opportunity Zone benefits that had previously applied in New York. Some commentators have pointed to the budget process reduction of benefits as a “left wing” reaction to former President Trump’s support of the federal OZ program (which applies in all 50 states and the US Virgin Islands and Puerto Rico). Others have stated that it is a necessary move to reduce benefits for deals that should not be receiving federal and state benefits.

If the budget is approved, and the provisions become operative, New York will no longer offer some of the state tax benefits to real estate investors funding Opportunity Zone projects in New York, placing New York deals at a disadvantage to New Jersey, Connecticut, Ohio and other adjacent states that have approved and will retain their state benefits.

The OZ program is a Federal program that was enacted in 2017 and which became operative in 2018. Governors of all 50 states, including New York, were asked to review census data provided by the federal government which focused the Opportunity Zone program on low income areas throughout the US as identified in HUD census data from 2010. The Governors of all 50 states were then given 3 months to choose from within the potential applicable opportunity zones in their state which zones should become Opportunity Zones. Thereafter, once these zones were selected by the various governors, they were sent to Treasury for final approval, all of which selected zones were ultimately approved.

This process occurred during early 2018. Thereafter, the majority of states also “followed form” and permitted zones that the states had previously selected to be OZs to also be eligible for state benefits which would be the same as the federal benefits that existed under the program (i.e., (1) deferral of capital gains until 12-31-2026 (the “Deferral Benefit“); (2) potential reduction of the amount that is subject to tax by 15% if gain eligible dollars were invested into a qualified opportunity zone fund in 2018 or 2019, or 10% if gain eligible dollars were invested into a qualified opportunity zone fund in 2020 or 2021 (the “Reduction Benefit“); and, (3) if the investor followed the rules of the OZ Program and invested an amount of gain eligible dollars into a QOF (the “fund”) and left its investment in the QOF for 10 years or more, and, thereafter the QOF sold the property or the business it owned after the 10 year period but before 12-31-2047, then all gain on the sale of the business or real estate would NOT be subject to federal capital gains tax (the “Exclusion Benefit”). By electing to follow form, the states that did so, elected to have the Deferral Benefit, the Reduction Benefit and the Exclusion Benefit also apply at the state level on gains that would have otherwise been payable to the state; meaning the applicable states would also permit investments in their applicable OZ areas to obtain a state level Deferral Benefit, Reduction Benefit and the Exclusion Benefit.

New York, like all of its adjacent neighboring states, was one of the states that enacted legislation to incent Opportunity Zone investments by permitted such OZ benefits at the state level (i.e., the Deferral Benefit, the Reduction Benefit and the Exclusion Benefit at the New York level).

Under the 2021 New York budget proposal, the New York Deferral Benefit and the New York Reduction Benefits at the New York level would NO LONGER be applicable. The result of this change is that investors in New York businesses in the New York OZs and in real estate in the New York OZ, will no longer receive the same benefits as neighboring states, which could result in investors looking at these other adjacent states first or in a more meaningful way, given that the state level OZ incentives exist there rather than in New York.

While some commentators have stated this will “deal[] another blow to the program and developers taking advantage of it”, my personal view is that the benefits being eliminated in the budget process (i.e., deferral of capital gains payments until 12-31-2026 and reduction of the amount subject to tax by 10% if investment was made in 2020 or 2021), are not the real driver of the OZ program and the massive amount of investment that has occurred in the low and moderate income opportunity zones nationally since the enactment of the OZ program – rather, it is the Exclusion Benefit, which is NOT being eliminated in New York, that is the main driver of behavior in the OZs.

Even with the New York budget modifications, New York’s 514 census tracts included in the program will still qualify for federal tax incentives for investing in these distressed areas and the New York Exclusion Benefit will still apply.

Follow The Yellow Brick Road: So, has New York cut off its nose to spite its face? Slightly, as some investors who are seeking both federal and state benefits to justify a more difficult project will likely look elsewhere. That said, the real driver of transactions in the OZ space as noted above is the Exclusion Benefit which applies once one has been invested in the applicable opportunity zone for 10 years or more, and this benefit, notwithstanding the New York change, will still exist at BOTH the federal and New York state level. On balance, while the budget change sounds like a big move and strikes a blow for anti-Trump sentiment, in reality, the real opportunity of the OZ program in hopefully creating jobs for local residents will remain and the Exclusion Benefit driver will remain in tact and continue to provide a reinforcer for this type of behavior.

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 73 OZ deals since their inception and are actively working on over 33 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, Art Momjian, Scott Gluck, Lee Potter, Keli Isaacson Whitlock, Anastasios Kastrinakis, or the attorney in the firm with whom you are regularly in contact.

Take care and stay safe.

August 26, 2020 by Brad A. Molotsky

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.

March 11, 2020 by Brad A. Molotsky

From the Land of OZ – Timing for Filing Forms 8996 and 8997 and the 180 day investment period – Spring Forward!

Good morning/afternoon friends. As we draw close to March 15th, a magic day for partnerships and S corps. for required tax filings, if you have invested in a QOF or a QOZB, I wanted to politely reach out and remind you all of something your accountant is likely to have already covered but, just in case:

1. Individuals – have 180 days from their gain event to put as much or as little capital gains as they want into a QOF. The individual needs to file a Form 8997 for his/her individual OZ investments. This form is available on line at www.irs.gov and is due with your individual return in April.

2. Partners in Partnerships; Shareholders in S Corps. – as you likely know, the final regulations issued in December 2019 allow partners and shareholders to invest capital gains 180 days from when the return for the relevant entity is due. This due date, WITHOUT EXTENSION, is March 15th. 180 days from March 15th takes one to September 11th. Thus, if you are a shareholder in an S corp or a partner in a partnership that had 2019 gain that is distributed to you in your individual capacity, you have until September 11, 2020 (this year) to place your gain into an QOF and still qualify. That is for you in your individual capacity friends.

The entity that is the QOF (the qualified Opportunity Zone Fund) is required to file form 8996 with its tax return to tell the IRS it wants to be treated as a QOF. If the QOF files an extension, this form would be due with the extension. Note, the September date for the individual is NOT extended regarding the timing for their investments into a QOF and the individual is required to make a decisions 180 days from when the return was originally due (i.e., March 15th).

3. QOZBs – as discussed, if relevant to you, QOZBs do NOT need to file any forms with the IRS. That said, they still need to meet the 70% test, the 50% test and 5% tests in order for the QOF that has invested in them to qualify; so their paperwork is very very relevant, they just don’t need to file anything with the IRS. Please note that the QOZB’s information will still be needed for the QOF to file its form 8996 as there are specific questions about the QOZB contained in the QOF’s filing paperwork.

I know, clear as mud! Just note, I did not make up the rules just trying to keep friends and clients from running afoul of them. If you have any questions or concerns, please reach out via email. I am traveling with my family (yes, I know, wash my hands) the rest of this week through Monday but will have access to email, just please be patient as out with my family. Best regards.

Over and out from the Land of OZ. -Brad

February 24, 2020 by Brad A. Molotsky

From the Land of OZ – States continue to add benefits to their OZ sites!

Good morning from the Land of OZ, it’s been a busy and interesting start to the new week with conversations about deals in all kinds of neat places – from Philly to Orlando, Ohio to Pennsylvania, the NJ shore to California and even to Alaska where I had a lovely chat with a business owner with capital gains yesterday who wanted to discuss how best to create a QOF. Fun stuff and the hectic pace of play continues – meaning, there is a lot going on despite what you may read elsewhere.

According to Novogradac, over $7.57 Billion dollars has been raised in QOFs in the funds they track (513 funds- 308 of which have raised equity) and these funds will be used to build and rehab buildings and businesses with an goal of $68.75 Billion of investment capacity.

State Updates:

Connecticut – Workforce Housing and OZs – Legislation that was recently introduced in the Connecticut General Assembly would expand the state’s workforce housing tax credit program to include properties in opportunity zones (OZs) and would change definitions for workforce housing in other parts of the state. S.B. 184 would add properties in OZs to the definition of “eligible workforce housing development projects.” According to Novogradac, the bill would also redefine workforce housing as a property where 10% of units are for low-income renters, 40% are available at 20% of the area’s prevailing rent, and the remainder are available at market rate. The legislation would double the statewide annual cap for the workforce housing tax credit to $20 Million.

Utah – HB 299 has been approved by the House in Utah. It enables added incentives for electric vehicle charging stations in Opportunity Zones, provides priority of review of OZ projects, allows for low income housing tax credits to be issued to projects in Utah OZs, provides preference for qualified opportunity zone. The bill also allows for 25% tax credits for certain parking lot construction projects located in OZs located within Utah.

Wisconsin – A bill to conform Wisconsin’s tax code to the federal Internal Revenue Code concerning opportunity zones (OZs) and to double the exclusion for capital gains invested in Wisconsin-based OZs passed the state Senate and is on the desk of Gov. Tony Evers for approval according to Novogradac. AB 532 would allow an additional 10% capital gains tax reduction for investors who hold investments in a Wisconsin-centered qualified opportunity fund (QOF) – defined as a QOF that holds at least 90% of its assets in Wisconsin OZ projects for 5 years and an additional 15% reduction for investors who hold their investment for 7 years.

Miscellaneous – we are hosting our monthly OZ webinar on March 4th at 1 pm EST. Guests for this upcoming month are Jill Homan of Javelin Investments and James Solomon of Ravinia Capital and we will be focusing on the OZ deals they have funded and what they are looking at and seeing in the OZ space. If interested, drop me an email and happy to have you join us.

Around on line if you want to discuss anything OZ or otherwise. Best regards – Brad

February 7, 2020 by Brad A. Molotsky

From the Land of OZ – Federal and State Updates and some annoying news from the IRS on the 70% Test

A quick thank you shout out to Craig Bernstein of OPZ Bernstein for being my guest on this month’s webinar installment of “From the Land of OZ”, our monthly Duane Morris Opportunity Zones webinar. If of interest, it is on tape and you can listen in at your convenience – we discussed the final regulations, fund deployment, fund creation and social impact investing.

First, the annoying News From the IRS involving QOZBs and the 70% test – prior to last week there was no written (or spoken) prohibitions on cash from a QOF being placed into a QOZB per a working capital plan counting for the 70% test at the QOZB level. As such, it was widely accepted by tax practitioners that cash in the QOZB bank account on the applicable testing date would be eligible to count for the 70% test. That is, until last week when an IRS official advised the working group at the RE Roundtable that cash that is not invested yet in the QOZB in real property or in a business does NOT count for the 70% test.

As such, please be very careful when planning for and dealing with the 70% test to make sure that the cash that ends up in that account is invested and actually buys inventory or good or materials that will be used in the business or real estate on or before the testing date.

Again, this is very new news and came out late last week from the IRS and you will NOT find it in writing anywhere. We will be confirming this in writing but, for the moment, I would assume this is the direction the IRS intends to go even though it’s not in writing anywhere in the regs.

In separate news, thanks to our pal Emily Lavery (rockstar policy person working with Senator Scott):

On the State level:

• In Colorado, a Montrose, CO-based co-working software company, received its third OZ investment through funding from the Center on Rural Innovation’s Innovation Fund, an Opportunity Fund that invests in high-growth technology companies supporting job creation and revenue generation in rural communities. (EIG). Nice!

• In Georgia, Vision unveiled for West End Mall’s rebirth as mixed-use ‘opportunity zone’: West End’s aging mall will be redeveloped into a bustling hub of offices, hotel rooms, and affordable housing that would set a national example for how federal opportunity zones could prosper is moving forward was unveiled, and investors with clout are buying in, according to project leaders. #Visionary

• In California, Catalyst Opportunity Funds Invests in SoLa Impact Opportunity Zone Projects to Reenergize South Los Angeles Communities. The SoLa projects aim to revitalize underserved LA neighborhoods such as Compton, Watts and South Central through real estate development, with additional services like job training, financial literacy, and homelessness prevention. #impactinvesting

• Also in California, a $250 Million Senior Living Facility is in the Works thanks to OZ’s: The facility will be outfitted with 52 assisted living units and 32 memory care units. It will be the first senior living community built in San Jose in 35 years. #seniorliving

• In Florida, an old Sears and mall property will become an “Innovation Community”: The project will have a focus on academic, scientific and technology uses thanks to Opportunity Zones. Preliminary plans for the former Sears store includes up to one million square feet of new office space; capacity for up to 400 hotel rooms, 1,000 apartment units and 100,000 square feet of street-level restaurants, shops, fitness and experiential concepts. #adaptivereuse

• In Rhode Island, Opportunity Zones will Give Rise to Largest Economic Development Project in Pawtucket’s History. This $400 million economic development project will transform Pawtucket’s riverfront with extensive development, including a new United Soccer League (USL) Championship soccer team and stadium. The state’s Democratic Governor, Gina Raimondo, was thrilled to see a $400M economic development project that will transform Pawtucket’s riverfront with extensive development, including a new United Soccer League (USL) Championship soccer team and stadium – all made possible because of Opportunity Zones. This project will add more than $130 million annually to the state’s GDP, and create more than 3,500 jobs. The Tidewater Landing project will include key infrastructure upgrades, a new multi-use stadium, a new indoor sports complex, market-rate and workforce housing, a hotel, and commercial office space. #OZSoccer #$400M

• In Kentucky, a $22.5M renovation coming to former YMCA building in Covington, KY: The former YMCA building and Gateway Bookstore in Covington, Kentucky have sat vacant since 2015. Now, with the help of Opportunity Zone financing, the two historic buildings will undergo a $22.5 million renovation. The mixed-use project, which expects to create over 100 new jobs, will include office space, 60 hotel units from the nearby Hotel Covington, and will serve as a northern trailhead for the Kentucky bourbon industry. #YMCAOZ

• In Alabama, the City of Opelika announced a new 105-acre Innovation and Technology Park to be built in an Opportunity Zone. the OTIP has Easy access to East Alabama Medical Center, Tiger Town, Historic Downtown Opelika, Southern State Community College and Auburn University. “Opelika has been incredibly proactive about harnessing the power of its Opportunity Zone. Its vision for building a place where innovation and technology can co-exist matches perfectly with the spirit of the Opportunity Zone incentive, which facilitates investment in both buildings and the companies that occupy them,” said Alexander Flachsbart, CEO of Opportunity Alabama. #RollTide

On the Federal Level:

• Treasury has FINALIZED the 2019 versions of OZ tax forms! This includes form 8996 (funds) and the new form 8997 (investors) for the 2019 tax year.

• the Opportunity Zone Catalyst Grand Prize winners of the of the Forbes OZ 20 were announced at Sorenson Impact Center’s Winter Innovation Summit in Salt Lake City, UT. The City of Erie and Opportunity Alabama emerged as the top two Community Organizations. The SoLa Impact Fund and Four Points Funding were named the top two Opportunity Zone Funds.

• Recently, Novogradac has reported that the 513 Qualified Opportunity Funds they are tracking now represent $68.75 billion in community development investment capacity. Novogradac is also now reporting that the 308 funds reporting equity raised, are now reporting a total $7.57 billion in equity raised! That’s near a one billion dollar increase over the last month and a ~50% increase since December. However, per Emily, as Tax Notes recently noted, these numbers may just be the tip of the iceberg. “Most of our transactions and most of the money we’re seeing flow through these qualified Opportunity Zones is through proprietary or private funds — funds that would not be reporting to any of these fund listing agencies or databases.

Over and out from the Land of OZ – if you have questions, comments, thoughts or want to appear on our monthly webinar – please do not hesitate to contact me at your convenience – email finds me fastest – bamolotsky@duanemorris.com. Have a super weekend.

-Brad A. Molotsky, Esq., Duane Morris, LLP

January 30, 2020 by Brad A. Molotsky

From the Land of OZ: Menino Survey of Mayors 2019 – OZ Observations Unveiled!

According to Boston University – Initiative on Cities – affectionately referred to as the Menino Survey – “Mayors generally believe the new federal Opportunity Zones program has targeted the right areas, nationally and in their own communities.

Community government is starting to take the lead in organizing their communities to take advantage of their tract designations and are confident in their ability to capitalize on the program. Mayors believe dedicated senior staff and an Opportunity Zone Investment program will be a key factor in making a census tract attractive and interesting.

– Roughly three quarters of cities in the survey sample had eligible census tracts, and two-thirds now have at least one designated opportunity zone, with an average of six per city

– 51% of mayors believe the Opportunity Zone program has effectively targeted areas of true economic need nationally

– 29% are unsure, suggesting a large minority are unaware or not yet confident the program is working as intended. [Figure 28]

– 65% of mayors agree that the tracts selected by their governor were either based on their own advice, or are comparable to what the mayor would have picked if they had been given the choice. [Figure 29]

– Mayors generally believe (79% of Democratic Mayors and 65% of Republican Mayors) that designations were driven by a desire on the part of governors to spread them across the state, and were responsive to mayors’ input. [Figure 33]

– Generally their degree of satisfaction with their own designations does not vary substantially by city size, partisanship of the mayor, or affluence of the community. [Figures 31-32]

– Mayors are generally NOT concerned that the program will lead to gentrification or residential displacement, including those leading more expensive cities, or that limited funds will ultimately be invested in their OZs. [Figure 35]

More than 50% believe the OZ program will have a large and positive impact on their local economy, with the greatest benefits conferred on outside investors but that small businesses and residents currently located in the zones will also greatly benefit. [Figures 36 and 39]

– The vast majority (75%) of mayors believe they have the capacity and power to maximize the benefits of their zones. Mayors believe the main mechanisms to maximize the benefits are: dedicated senior staff in city hall (54%) and an Opportunity Zone Investment brochure that outlines their community’s priorities and specific opportunities and assets (50%) and 34% believe supplemental monetary incentives will also be important. [Figures 37 and 41]

– 71% say the economic development director or city administrator is taking the lead in organizing the community to capitalize on the designations. [Figure 42]

– When it comes to their own role, 43% of mayors believe their job is to serve as an advocate for their city and its zones, and promote them to investors. [Figure 43]

Some very interesting numbers at a time when some national publications are saying the program is not working. While some zones may not be in the right spot or more difficult to develop or in the path of development already, they all needed to be part of the 2010 HUD census data for low income areas. Worth taking a read of the survey if you have the time and interest. Good stuff in there – well done BU!

If you have any questions or comments, please do not hesitate to contact me or my colleagues at the firm working in our Opportunity Zone team.

https://www.surveyofmayors.com/reports/Menino-Survey-of-Mayors-2019-Final-Report.pdf

-Brad A. Molotsky, Duane Morris, LLP

January 3, 2020January 6, 2020 by Brad A. Molotsky

Belpointe REIT OZ Fund is now trading on the OTCQX

As we beckon in the New Year and a new decade, Belpointe REIT recently announced that it has started trading on the OTCQX (the OTC) under the symbol “BELP.”

BELP represents the first QOF or Qualified Opportunity Fund that can be bought and sold directly through an investor’s brokerage account.

Per this am’s GlobeSt.com email, “We are very excited to be able to bring a Qualified Opportunity Fund to the public markets,” says Brandon Lacoff, CEO of Belpointe REIT. “Highly tax advantaged and private equity style vehicles like these are not typically available through the retail channels.”

It took Belpointe approximately 9 months to obtain approval by the FCC to list it shares on the exchange.

According to Mr. Lacoff, the minimum investment in the QOF is $100 and there are no investor servicing fees, acquisition or disposition fees. There is an annual management fee of 0.75%, and carried interest of 5%,

It will be interesting to see what kind of uptake Belpointe has in this investment vehicle but the price point is accessible and the liquidity should be helpful to those not sure if they want to stay in the OZ program for the full 10 years needed to obtain the benefit of elimination of capital gains on a sale prior to December 31, 2047. My instinct is if they can get the word out, this offering should be successful.

Good hunting friends and here is to a happy and healthy New Year and new decade. Over and out from the Emerald City. -Brad A. Molotsky

December 28, 2019January 6, 2020 by Brad A. Molotsky

My Top Ten Favorites from the Final Regs

Now that we have all had a chance to celebrate a Merry Christmas, a Happy Kwanzaa or a Happy Hanukah, and have had the chance to digest 544 pages of final OZ regs – what, you say you have not really studied the new final regs yet – can’t be the case :) !

As we are working feverishly (with beer as our our co companion along with my trusty dog Marty) I wanted to list out what I see as some really nice clarifications and additional flexibility that the final regulations provided – ok to disagree or chime in with your favorites if you want.

1. Working Capital Plan Timing – increase of up to 62 Months not just 31 month safe harbor for QOZBs with a working capital plan;

2. Ability to sell assets from a QOZB after ten years and still have elimination benefit clarification. Like this a lot. Logical but appreciated on the clarification.

3. Real Property Straddling a site – 2 enumerated tests for real property that straddles a zone and a non-zone – square footage and value;

4. “Original Use” for Brownfields investments so long as they are made safe;

5. “Original Use” for vacant property which was 1 year vacant when designated as an OZ in 2018 and which remains vacant until purchase or real property that was vacant for 3 years prior to purchase – both count as Original Use property and represents a reduction from 5 years;

6. Aggregation – the ability to aggregate assets within a site and within adjacent sites for purposes of qualifying for the 90% test;

7. Timing – clarity and additional flexibility for partners of a partnership and shareholders of an S corp. to invest amount of capital gains in a QOF 180 days from the due date (without extension) of the entity they are involved in;

8. Business Property Gains – the ability to not have to net capital losses with capital gains on 1231 property enables more gains to be eligible for investment within OZs;

9. Personal property used in an opportunity zone business can be counted for purposes of meeting the “substantial improvement” test. This includes section 1245 property that is not included in the basis of a building; and

10. Leases –
• Leases from state and local governments and tribes are not required to be at market rate. This policy is intended to facilitate arrangements where governments hope to encourage development by offering favorable leasing terms.
• Leases that are not between related parties are presumed to be at market rate.
• The working capital safe harbor is extended 24 months, for a total of 55 months, when a project is delayed due to a disaster and the opportunity zone is located in a federally declared disaster area.

11. Sin Businesses – Some would say that the allowance of less than 5% sin business as part of a property should be a top ten, but we will leave that at 11 and a topic for a different day, as I am not sure why having a tenancy of a sin business would be relevant to the real estate investment in a building and/or adaptively reusing of a property. It impacts NOI yes, but would not impact the real property investment and substantial improvement thereof or the original use thereof so not sure what the hubbub is here but happy to ruminate.

Take a look and DM me (get it) with your thoughts or views or other key provisions you like or dislike. Busy working on a few more closings before the 12/31/19 witching hour where we will lose the 15% reduction, but around and happy to chat at your convenience. Fun and interesting deals. Come join the party. -Brad