qualified opportunity fund – Page 2 – Opportunity Zones

February 22, 2019January 3, 2020 by Brad A. Molotsky

Leveraging Renewables in Opportunity Zones – Powerful Indeed!

Back on October 19, 2018, the U.S. Treasury Department issued proposed regulations for the federal Opportunity Zone tax incentive program created under the 2017 Tax Cuts and Job Act.

These regulations were highly anticipated by the real estate development and fund creation communities, which have been eagerly awaiting clarity from Treasury since the creation of the Opportunity Zone program earlier this year. We are in the same position now as we await additional guidance from Treasury that is expected in the next two weeks.

The program could become the most impactful federal incentive for equity capital investment in low-income and distressed communities ever. It offers significant capital gains tax benefits for taxpayers who invest in projects and businesses in low-income areas, allowing investors to delay, reduce and potentially eliminate capital gains taxes on appreciated assets or business located in and on Qualified Opportunity Zone investments.

Qualified Opportunity Zones are census tracts located in all 50 states in a low-income community. A detailed interactive map by state identifying the applicable opportunity zones is available, https://eig.org/opportunityzones.

As Forbes magazine indicated, there is likely $6 trillion of capital gains in the U.S. that represent potential available investment capital that could use this program to drive investment into applicable Qualified Opportunity Zone businesses or real estate.

The program is not limited to any specific product type nor does it mandate any job creation requirements as part of the investment in a Qualified Opportunity Zone. Thus, the program is applicable to any type of investor with capital gains from the sale of personal property or real property and to developers/owners of all property types including multi-family rental, retail, hotels, industrial, commercial, office, industries, self-storage, assisted-living, affordable housing, etc.

General Overview:

Under the Opportunity Zone program, individuals and other entities can delay paying federal income tax on capital gains until as late as December 31, 2026 – provided those gains are invested in Qualified Opportunity Funds investing 90 percent of their assets in businesses or tangible property located in a Qualified Opportunity Zone. In addition, the gains on investments in Qualified Opportunity Funds can be federal income tax-free if the investment is held for at least 10 years. These tax benefits could reduce the cost of capital for these projects, making them more viable, especially when paired with other development incentives like the New Markets Tax Credit or Low-Income Housing Tax Credit.

Specifically, appreciation on investments within Qualified Opportunity Funds that are held for at least 10 years are excluded from gross income. Thus, the longer one has an investment within a Qualified Opportunity Fund within an Opportunity Zone, the more one can reduce its capital gain – either by 10 percent or 15 percent, and if one stays in the zone for 10 years or more and the property or qualified business appreciated in value, the appreciation is not subject to capital gains tax at the federal level. The regulations as proposed give the investor/owner until December 31, 2047 to sell the business or property in order to take advantage of the no capital gains to be paid on the sale of appreciated assets rules.

Additionally, owners of low tax basis properties can sell their properties and defer the capital gains to the extent the gains are invested in a Qualified Opportunity Zone, which will likely attract investor capital that is looking to defer capital gains, thereby making the Qualified Opportunity Zones potentially more valuable than non-Qualified Opportunity Zone properties.

In addition, an Opportunity Fund may combine the tax incentives available in Opportunity Zones with other incentives, including those for renewable energy projects.

Renewable energy projects typically are “project financed,” meaning that the project sponsor invests equity and raises debt on a nonrecourse basis where the debt is serviced from the cash flow generated by the renewable energy project. Federal tax incentives such as the investment tax credit (for solar), the production tax credit (for wind), and accelerated depreciation are available to renewable energy projects; however, the project sponsor may need to partner with a tax equity investor in order to take advantage of these incentives because the project company often is a newly created entity with no tax liability of its own. States may also offer tax and other incentives for investing in renewable energy projects, with the most significant being renewable energy certificate (“REC”) programs.

One REC represents one megawatt-hour of electricity generated by a renewable energy resource. In states that have a renewable portfolio standard (“RPS”), electric utilities are required to supply a certain percentage of electricity from renewable energy resources to their customers. If an electric utility is unable to meet its RPS requirement, it may offset the shortfall by purchasing RECs (or, for solar, SRECs) from a secondary market. Even if a renewable energy project is not located in a state with an RPS, it may be able to sell its RECs into a regional market. Thus, renewable energy projects can offer investors significant federal and state incentives.

Thus, having a development project with potentially lower cost equity due to OZ investors receiving the above stated OZ benefits and when combined with the powerful SREC benefits, accelerated depreciation and lower costs of utilities represented by being able to generate your own electricity, all aggregate to present not only an attractive OZ investment opportunity but one that combines incentives for powerful usage and consumption savings which will be reflected in the overall return for the project and which should inure to the benefit of the owner or their occupants.

A powerful gift that keeps on giving in power consumption savings and cost savings and potential upside on sale after ten years. Let the sun shine!

By Brad A. Molotsky and Patrick L. Morand

February 12, 2019January 3, 2020 by Brad A. Molotsky

Opportunity Zones – CO Taking the OZ Program Seriously!

Governor Jared Polis announced the formation of a dedicated office within the Office of Economic Development and International Trade (OEDIT) to cultivate active investment in Colorado’s 126 federally designated Opportunity Zones.

“Colorado has earned national recognition for our thoughtful and inclusive approach designating Opportunity Zones, and we are committed to ensuring that we realize the maximum potential,” said Governor Jared Polis. “It’s vital that we continue to build on this momentum and collaborate with communities and investors to make these opportunities a reality to create good jobs.”

The new team will be led by recently named Opportunity Zone Program Director Jana Persky and charged with engaging stakeholders to facilitate active investment in designated Colorado tracts. The office will provide procedural guidance and technical knowledge to enable communities to secure much-needed investment and is funded through an Economic Development Commission allocation.

The office is partnering with the Colorado Department of Local Affairs (DOLA) to support communities in developing Opportunity Zone strategies, with the goal of attracting capital to projects that will have a positive community impact.

“DOLA has been working in partnership with local communities and leaders and OEDIT to identify where their designated areas can achieve its full potential,” said DOLA Executive Director Rick Garcia. “Through the Opportunity Zone program, equitable distribution will be possible in some of our rural areas of the state which will provide them with the opportunity to continue along the path towards economic innovation throughout Colorado.”

To help facilitate Opportunity Zone investments, the office will offer grants to support economic modeling, prospectus development, and other technical assistance needed to help community-oriented projects come to fruition.

OEDIT, in conjunction with Startup Colorado and the Blackstone Entrepreneurs Network, has also launched CO-Invest.co to connect investors and opportunities – including opportunity zones – to leverage the speed and reach of technology to further facilitate the investment opportunities.

Great to see communities, the State and its economic development teams working hand in glove to deliver great resources and tools to the market place to assist those interested in appropriate investment that is desired by the applicable communities. Way to go CO!

February 8, 2019January 3, 2020 by Brad A. Molotsky

New York State of Mind – What Gives?

While I am sure there is some logical explanation, I am a bit puzzled at the moment having just read a blurb from Novogradac regarding a tax bill in New York State –

According to the report, New York State Sens. Michael Gianaris and Jessica Ramos introduced a bill that would eliminate state tax incentives for capital gains when investing in federal qualified opportunity zones (OZs).

Yes, you read that correctly – eliminate state incentives for investing in the OZ…hmm aren’t we trying to incent people to invest in low and moderate income areas Senators?

S.B. 3401 would be effective for tax years beginning on and after Jan. 1, 2018. The bill, designed to eliminate a NY state incentive to participate in the OZ incentive, was assigned to the Senate Budget and Revenue Committee.

While I can totally appreciate that some might be frustrated by what looks like the rich getting richer regarding certain large companies being incented to come to the New York and receive the benefits of not only a federal incentive in deferral and reduction of capital gains but to then add New York local and state benefits as well might seem like too much, but these benefit to companies like Amazon and Google and others should be weighed in the context of job creation, economic multiplier effect to the local economy and local job creation for local zip codes and for folks who live in the area. I look forward to hearing from the Senators’ on their rational for eliminating the benefit – maybe too much of a good thing? Should be interesting to say the least.

p.s. congrats to our friends Joe Scalio, Rich Blumenreich, and Ruth Tang, in case you have not heard about it or seen it, but they were all named to the Top 50 in OZs nationally – a worthy honor – have a super weekend!

January 26, 2019January 3, 2020 by Brad A. Molotsky

SNJ and the Opportunity Zone Program – Strike while the OZ is Hot!

On October 19, the U.S. Treasury Department issued proposed regulations for the federal Opportunity Zone tax incentive program created under the 2017 Tax Cuts and Job Act.

General Overview:

Deadlines:

While the benefits of the program can be advantageous, investors and developers seeking to capitalize on the Opportunity Zone program need to move quickly in order to take full advantage of the tax benefit as demand increases and the time period diminishes.

In other words, as the program only lasts until 2026, the seven-year ability to reduce capital gains by 15 percent will disappear if investments are not made by 2019 and the five-year ability to reduce capital gains by 10 percent will disappear if not made by 2021. Therefore, if one is interested in maximizing the value of the program and its value to investors, investors and developers need to move quickly to commence development and acquisitions in order to maximize the time periods available to invest their capital gains inside the program windows provided within the program.

Additionally, in order to defer short- and long-term capital gains realized on the sale of property, the capital gain portion of the sale or disposition has to be reinvested within 180 days in a Qualified Opportunity Fund.

Also important to note that gains are required to be recognized on the earlier of a disposal of the Qualified Opportunity Fund investment or by December 31, 2026, and are reduced over time.

The basis of the Qualified Opportunity Zone investment increases by 10 percent of the deferred gain if the investment is held for five years from the date of reinvestment and by 15 percent of the deferred gain if the investment is held for seven years from the date of reinvestment. In other words, the gain on which capital gains is paid is reduced to 85 percent of the original gain.

While the recently announced regulations provided clarity on specific time period for self-certification as an Qualified Opportunity Zone fund, for what constitutes a Qualified Opportunity Zone business and for what structures now qualify as Qualified Opportunity Zone Funds (i.e., limited partnerships, C-corporations, limited liability companies, REITs, RICs, etc.), investors need to be aware that certain rules regarding related parties and original use property still need to be clarified by Treasury in additional regulations.

In Southern New Jersey

In Southern New Jersey, the program will drive investment from all types of developers and investors seeking to place their capital gains into funds and seeking to place applicable businesses into Qualified Zones in order to potentially defer and reduce applicable capital gains. Developers will seek to purchase land in order to build with their own capital and/or equity from Opportunity Zone investment vehicles in order to utilize cheaper sources of capital and drive development returns.

Atypical real estate investors who are looking to defer and reduce capital gains may not be looking for typical real estate like returns due to the fact that they will be able to defer and reduce their capital gains via the Opportunity Zone program which will likely create a healthy dynamic for capital flows. Sectors such as multifamily, warehouse, self-storage, grocery anchor retail, and assisted living will see substantial interest from investors and developers.

In Camden County, areas such as Cinnaminson, Pennsauken, Deptford, Camden, Pine Hill, Glassboro and Lindenwold will likely be hot spots for focused/targeted Opportunity Zone investment. In Atlantic County, parts of Atlantic City, Pleasantville, the Atlantic City International Airport, Somers Point and in Cumberland County a large swath of Vineland has been designated as an Opportunity Zone and will likely see interest for focused/targeted Opportunity Zone investment.

As Confucius once said, it is good to live in interesting times. Not a day goes by without an article or post online regarding Opportunity Zones and the ability to utilize them for development and capital gains deferral.

Now is the time to optimize your capital gains deferrals and reductions if you have them vis-à-vis the sale of personal property or real property. Interested investors are already focusing on deploying capital in New Jersey and elsewhere in substantially improving various asset classes and in creating funds to deploy in investing in various asset classes.

Brad Molotsky is a real estate attorney and partner in Duane Morris’ New Jersey and Philadelphia offices. He advises clients on commercial leasing (including a specialty in cannabis leasing), acquisitions, opportunity zone fund creation and fund deployment, financing, public private partnerships and real estate joint ventures. He can be reached at BAMolotsky@duanemorris.com.

January 18, 2019January 3, 2020 by Brad A. Molotsky

OZs and Affordable Housing – Good Bedfellows in Nebraska

A bill in the Nebraska Legislature would give priority to federal opportunity zones (OZs) in the allocation of state Affordable Housing Trust Fund and other state programs.

As crafted, LB 87 would add OZs to already existing statewide enterprise zones in receiving priority for allocation of precious housing trust fund assistance. T

The bill would similarly prioritize OZs to receive Job Training Cash Fund, Site and Building Development Fund and Business Innovation Act assistance.

The legislation was referred to the Urban Affairs Committee and is likely to see movement in the coming weeks. This type of OZ together with other incentives at the state level is also seeing similar movement in Ohio and California for different types of incentives for job creation and housing.

If interested, give us a call at Duane Morris where we continue to track and execute on Opportunity Zone related matters for our clients and friends.