Publications

The market has reacted with excitement over the potential tax benefits offered under the "Opportunity Zone" tax incentive program introduced in the 2017 Tax Cuts Jobs Act and the proposed guidance issued by the Treasury Department and the IRS in October 2018. In general, the program offers a substantial opportunity to both (i) defer (and partially exempt) capital gains from income taxes by reinvesting the capital gains in specified low-income areas (i.e., the Opportunity Zones), and (ii) completely exclude from taxation capital gains with respect to the subsequent appreciation in the Opportunity Zone investment. In reaction to the program, a tremendous flow of investment is anticipated to be deployed into the various Opportunity Zones across the country over the next few years.

Many articles have detailed the potential tax benefits for investors under the Opportunity Zone program and the procedures for investors to adhere to in order to realize the tax benefits, and it has been difficult to go a day without coming across a new article on the subject. However, little has been written from the real estate developer’s perspective.

Although the program is not limited to investments in real estate, real estate is seen as the ideal fit for the program for several critical reasons, including (i) the ability to deploy a substantial amount of capital within the required time frames as compared to non-real estate investments, (ii) the predictability of the capital needed to construct ground-up or value-add improvements in order to meet the "substantial improvement" test, (iii) the time periods typically involved in ground-up and value-add real estate development align better with the required holding periods than most other investments, (iv) the immobility of real estate (i.e., it is stuck in the Opportunity Zone), unlike other investments which could morph and grow outside of the Opportunity Zone (putting at risk its qualification as an Opportunity Zone investment), and (v) the fact that many of the urban areas in the Opportunity Zones are areas of short supply of housing with high demand for new housing (and many of the rural areas in the Opportunity Zones have the potential for both industrial and clean-energy infrastructure investment).

Given the potential tax benefits available to investors, and the expected investor demand for real estate investments under the program, capital invested under the program may become one of the most attractive sources of financing available to real estate developers and sponsors.

With our focus turned to the perspective of the real estate developer, the following are key elements for the developer to consider under the program:

A. Joint Venture Equity Investments

Although some developers will have the ability to tap into this reinvestment of capital gains directly, and several larger real estate developers may have the wherewithal to establish their own investment funds, we expect the market to be dominated by Qualified Opportunity Funds (“QOFs”) established by investment banks and private equity and hedge funds. It is these banks and funds that have the infrastructure to attract and aggregate investments of capital gains from multiple investors from various sources (from the sales of securities, to artwork, to real estate, and so on) and who, in turn, we expect will “be the bridge” between these investors and real estate developers. In addition, in order for the investment to qualify under the program, it must constitute an equity investment. Capital gains reinvested as debt do not qualify under the program.

Accordingly, we believe that real estate developers will, in most cases, access this capital through “joint venture” arrangements with QOFs; and many of the typical financial partner/development partner joint venture considerations will apply (such as management authority and consent rights, terms regarding required additional capital, dispute resolution, exit ability and transfer rights). In particular, under the program, there is no limitation on how the equity investment is structured, and preferred returns, variable waterfalls and promote equity structures are all permitted.

B. Opportunity Zone Designated Property

The real property to be developed must be located in one of the approximately 8,700 approved Opportunity Zones. The zones range from urban areas in New York City, Las Angeles and Washington, D.C. to rural areas throughout the country and all of Puerto Rico. The entire list of approved Opportunity Zones can be found at https://www.cdfifund.gov/Pages/Opportunity-Zones.aspx.

C. Multiple Uses Permitted

There are virtually no limitations on the type of real estate project that may qualify under the program. Multifamily, office, retail, hospitality, industrial/warehouse, and mixed use can all qualify. The only uses that will not qualify are (i) golf courses, (ii) country clubs, (iii) massage parlors, (iv) hot-tub facilities, (v) suntan facilities, (vi) racetracks or gambling related facilities, and (vii) any store the principal business of which is the sale of alcoholic beverages for off-premises consumption.

D. Acquired on or after December 31, 2017

The real property must be first acquired (whether by acquisition of the fee interest or by lease) on or after December 31, 2017 from an “unaffiliated party”. The Internal Revenue Code provides detailed rules for determining whether parties to a sales transaction are affiliated or unaffiliated, and the original owner may be able to retain a minority interest in the new owner of the property.

E. Substantial Improvements

The real property must be "substantially improved" in order to qualify under the program. The recent proposed regulations issued by the Treasury Department clarified that land value may be disregarded in calculating whether the substantial improvement test is met. Accordingly, the developer is now required to make improvements to the property at least equal to the basis of the building only (i.e., the portion of the purchase price allocable to the building, as opposed to the aggregate purchase price inclusive of both the building and the land). So both value-add type projects, gut rehabs and ground-up development can all qualify, as long as the substantial improvement test is met. The substantial improvements must be made within 30 months after the date of acquisition of the property in order to qualify.

Given the risk of loss of the tax benefits in the event the substantial improvement test is not satisfied within the 30-month period, we anticipate that QOFs will attempt to require developers to satisfy them that the test will be met and require personal guarantees (and/or other security) to protect the QOF in the event the test is not satisfied.

It should be noted that some large-scale projects, involving the risk of zoning changes and change in market conditions, may be too risky for the program given the 30-month requirement. The program is more geared to “shovel-ready” projects (i.e., permits, plans and specifications, construction contract and contraction financing all in-place upon acquisition) that are more certain to meet the 30-month substantial improvement requirement.

It should also be noted that the Treasury Department has not yet provided rules for the substantial improvement of unimproved land. Hopefully, guidance will be forthcoming from the Treasury Department shortly.

F. Required Holding Periods

In order for a taxpayer to realize the tax benefits offered by the program, there are a few “holding periods” that must be complied with.

• First, if a capital gain is invested in a QOF, so long as the taxpayer continues to hold its investment in the QOF, the tax due on the gain is deferred until December 31, 2026.
• Second, if, upon the earlier of the taxpayer’s sale of its interest in the QOF or December 31, 2026, the taxpayer has then held the investment for at least 5 years, the amount of such gain to be taxed at such time will be reduced by 10%, and if the investment has then held for at least 7 years, the amount of such gain to be taxed at such time will be reduced by an additional 5% (i.e., a 15% aggregate reduction).
• Third, if a capital gain is invested in a QOF prior to June 30, 2027, and the taxpayer holds the investment for at least 10 years (but not beyond December 31, 2047), ALL capital gains attributable to the appreciation in the QOF investment are NOT taxable.

Accordingly, in order to maximize the tax benefits of the program, the QOFs will very likely require that the property not be sold by the joint venture for a lengthy time period, which may be as long as 10 years following the date of acquisition of the property.

Furthermore, in order to avoid the risk of a pre-mature “sale” by reason of a mortgage foreclosure, the QOF may require limitations on the amount and terms of mortgage debt placed upon the project.

The developer’s time-horizon for its exit strategy and its debt financing needs, will need to be consistent with the holding period and mortgage limitations required by the QOF, and some projects may not fit within these requirements.

G. Phantom Income Risk

Under the program, if a taxpayer has not sold its investment in the QOF by December 31, 2026, the taxpayer will recognize its deferred capital gain (or applicable portion thereof, if the taxpayer has taken advantage of the 10% or 15% discount mentioned above) at that time, whether or not the taxpayer has liquated its investment.

Accordingly, it is possible that the QOFs will try to negotiate the right to require the sale of the property, or a refinancing of mortgage debt on the property, at or prior to December 31, 2026 in order to generate distributable cash for its investors to pay taxes on the recognized capital gains. Of course, this is somewhat inconsistent with the QOFs’ holding period objective described above, and we cannot be certain yet how these two requirements will work together in negotiating the joint venture agreement with the developer.

H. No Impact on Other Tax Incentives

The use of QOF equity financing has no impact on the ability of the real estate project to take advantage of most other tax benefits or incentives available under federal, state or local law, including New Market Tax Credit, Low-Income Housing Tax Credit, and local law tax benefits (such as the Affordable New Housing Program in New York).

Additional guidance is expected from the Treasury Department in the near future to address remaining open issues with the program, which will hopefully provide investors with more clarity and comfort in moving forward with funding Opportunity Zone investments. The Tannenbaum Helpern Real Estate Group will be monitoring and reporting on this guidance, with a continued focus on the impact any additional guidance has on the real estate developer.

For more information on the topic discussed, contact:

• Eric S. Schoenfeld  |  schoenfeld@thsh.com  |  212-508-6713