IRS Clarifies Opportunity Zone Investing Rules With New Regulations

Since the Opportunity Zones program was announcing in 2017, the buzz around investing in Opportunity Zones has grown significantly. However, many of the rules of the program have not been particularly clear, leaving many investors confused. In an attempt to clarify things, the IRS released a new set of Opportunity Zone regulations on April 17, 2019, which, ideally, will increase investor confidence in the program, making it much easier for business owners, investors and Opportunity Fund managers to know what types of investments do and do not qualify.

What Investors Already Knew About Opportunity Zones

Before the IRS released its new updates, it was already known that an Opportunity Fund would need to have 90% of its assets invested in a Qualified Opportunity Zone (QOZ), or stock or partnership in a Qualified Opportunity Zone Business (QOZB). Qualified Opportunity Zone Businesses would need to have 70% of their assets located in a QOZ, or meet certain other eligibility requirements. That means that an Opportunity Fund could hold 90% of its assets in businesses that hold 70% of their assets in QOZs, meaning that, from a bird’s eye level, only 63% of the fund would need to actually be invested in QOZ.

However, a lot of confusion and uncertainty arose from other requirements for QOZBs, primarily the rule that Qualified Opportunity Zone Businesses would need to earn 50% of their income from within an Opportunity Zone. This seemed unrealistic to most investors, especially considering the fact that O-Zones are generally located in economically disadvantaged areas.

In addition, the IRS stated that an Opportunity Fund would need to have acquired its assets after December 31st, 2017. In regards to acquiring shares in a business or partnership, that business or partnership would need to qualify as a QOZB under the rules mentioned above (and would need to submit Form 8996 to the IRS).

What The IRS Clarified About Opportunity Zone Investing

The IRS’s new rules clarified several things about Opportunity Zone investing-- particularly about investing in Qualified Opportunity Zone businesses. In particular, the aforementioned 50% rule was somewhat re-tooled. The new rules stipulate that:

• Employees and contractors of a QOZB need to spend a minimum of 50% of their billable hours working inside a QOZ, or:

• A business must have real estate located inside an Opportunity Zone, the operation of which contributed at least 50% of the businesses income, even if the business itself is not located in an Opportunity Zone; or:

• 50% of funds paid to contractors and employees is for work done inside an Opportunity Zone, even if the business itself is not located in an Opportunity Zone.

In addition, business can hold 5% (or sometimes more), of working capital reserves, but need to have a working plan to utilize these funds.

Property Leasing Rules and Opportunity Zones

In addition to clarifying aspects of the 50% rule, the IRS’s new rules also added useful information about property leasing in regards to the O-Zones program. In particular, investors/business may qualify for Opportunity Zone benefits if they:

• Lease out property within a QOZ

• Build/improve property, and lease it within a QOZ

However, investors may not build property and lease it out with a NNN lease. The lease must involve a higher level of activity from the landlord/owner (as an Opportunity Fund or Qualified Opportunity Zone Business). In the eyes of the IRS, leasing property with full service leases, net leases, and double net leases qualifies as the operation of a “trade or business,” while leasing a property with a triple net lease only qualifies as holding a passive investment (at least in regards to the Opportunity Zones program.)

Despite this increased freedom to lease property, there are certain restrictions and rules that investors/businesses must follow when leasing property out. In particular:

• Leased property transactions must be “arm’s length”; if not, lease prepayment for more than 1 year at once is prohibited

• Within 30 months of leasing the property, the Opportunity Fund or Qualified Opportunity Zone Business needs to purchase a property of equal or greater value.  

• The lease must begin after December 31st, 2017.

• Lease-to-buy agreements are not permitted.

Raw and Improved Land Considerations and Opportunity Zones

In addition to having a variety of questions about Qualified Opportunity Zone Businesses and business leasing, investors were also left wondering about many of the rules about raw and improved land and O-Zones investing. In regards to improved land, initial IRS rules stated that current buildings must be improved with an investment equal to or greater than the cost basis of the existing building (pre-improvement) in order to qualify. And, in regards to raw land, the IRS already stated that any qualified land must not have been previously utilized in a Qualified Opportunity Zone, or, alternatively, needs to have been substantially improved. However, despite this information, certain questions still lingered.

Fortunately, the IRS issued clarifications involving many of these areas of concern. First, the IRS stated “use” begins when a project has first been depreciated, so projects that are unfinished and have not yet received a certificate of occupancy may be eligible as a QOF or QOZB investment. In addition, any properties that have been vacant for 5+ years are not counted as having been “previously used,” and will therefore also be eligible as a QOF or QOZB investment.

While funds and businesses cannot simply purchase and hold raw land, properties that consist of a large portion of land with one or more buildings will be treated somewhat differently. In fact, these types of properties will generally receive a separate cost basis for both the land and building. And, in these scenarios, land will not need to be improved by an amount equal to the cost basis of the entire plot of land, only by the cost basis of the building.

When Do Opportunity Fund Investors Have to Pay Capital Gains Taxes?

The main benefit of Opportunity Zones is the deferral of capital gains taxes-- and the new IRS information release details which specific O-Zone activities trigger mandatory capital gains tax payments, and which do not.

Capital gains taxes are typically due when:

• An Opportunity Fund is dissolved

• An O-Zone investment is given as a gift

• More than 25% of the ownership of an S-corp changes

• An Opportunity Fund redeems shareholder interests

Capital gains taxes are typically not due when:

• A shareholder dies

• The organization undergoes a tax-free reorganization

• Less than 25% of the ownership of an S-corp changes

Commercial Real Estate Loans and Capital Gains Tax Considerations

Fortunately, the new IRS rules confirm that taking on debt will not negatively affect an Opportunity Fund’s capital gains tax benefits. Plus, Opportunity Funds can purchase and improve property, sell it, and purchase a new property with the proceeds, without immediately having to pay capital gains taxes (given they are holding the property for at least 10 years). However, they will have to pay taxes on any gains they make by the property sale that are in excess of the initial tax basis of the property. In essence, funds cannot simply keep flipping properties and avoiding taxes. In general, funds will not have to pay taxes immediately upon their dissolution, as long as the eligible assets and/or businesses still remain inside an Qualified Opportunity Zone.

Unfortunately, Opportunity Fund investors may only defer their original capital gains until December 31, 2026. And, in order to get the full 15% capital gains discount, an investor needs to hold the investment for a minimum of 7 years-- which, in essence, means they must invest by December 31, 2019, in order to get this entire benefit. Of course, the other tax benefits of Opportunity Funds still make them a desirable investment vehicle, but, in the eyes of many experts, this strict timeline does limit the full potential of the program.