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The Tax Cuts and Jobs Act created opportunity zones as an economic development tool to stimulate investments in distressed communities. This tool extends tax advantages to investors in qualified opportunity funds, provided compliance with a wide range of time-sensitive deadlines is satisfied. As a result of the COVID-19 pandemic, many investors began to shy away from the opportunity zone program. Moreover, existing investors became increasingly concerned that they couldn’t satisfy these stringent deadlines. In response, the Treasury Department issued Notice 2020-39 to provide relief by extending some of those deadlines.
180-day investment period
Under the opportunity zone program, taxpayers defer recognizing capital gains if, within 180 days of when the gains would otherwise be recognized, they make an equity investment in a qualified opportunity fund. To alleviate investor concerns as to whether they should invest in an economically distressed community in the midst of a pandemic, the notice extends the 180-day period of any taxpayer whose investment deadline expires between April 1, 2020 and Dec. 30, 2020, to Dec. 31, 2020. As a result, additional time is available to investors to explore potential investment opportunities, and funds have a larger pool of qualified investors to pitch to, as they can now reach out to investors who realized capital gains as late as October of 2019.
90 percent investment standard
The opportunity zone program requires taxpayers to invest in qualified opportunity funds, which are corporations or partnerships (including LLCs) whose purpose is to invest in opportunity zones, and 90 percent of whose assets consist of certain businesses, or business property, located, or used, in an opportunity zone. This 90 percent test is measured by averaging the percentage of qualified property held by a fund six months after it is formed, or elects to be a qualified opportunity fund, and the last day of its taxable year. If this 90 percent investment standard is not satisfied, the fund must pay a penalty, unless it can establish that its failure to meet the standard was due to reasonable cause.
Tristan Markwell is program manager for data science and advanced analytics for Providence St Joseph Health.
Doug Duncan is the chief economist at Fannie Mae.
Allan Koltin, CPA, CGMA, is the CEO of Koltin Consulting Group, a Chicago-based consulting firm that specializes in working with professional and financial services firms in the areas of practice growth, practice management, human capital, and mergers and acquisitions. A nationally recognized speaker and industry analyst, Allan has appeared on the CNN, WGN and Fox Television networks and has been quoted frequently in such media as the Wall Street Journal, New York Times, Washington Post, Chicago Tribune, Los Angeles Times, USA Today and New York Post, as well as Bloomberg News, BBC World Service, Business Week, Forbes and Reuters. He has also spoken nationally and internationally at hundreds of conferences including those held by the AICPA, international CPA associations and state CPA societies.For twelve consecutive years, Allan has been named by Accounting Today as one of the Top 100 Most Influential People in the accounting profession. Koltin was also voted one of the 10 Most Recommended Consultants, for the seventh straight year, in the “Annual Survey of Firms” conducted by INSIDE Public Accounting. In 2012, Allan was named by CPA Practice Advisor as one of the Top 25 Thought Leaders in the profession. He was one of the first inducted into the Accounting Marketing Hall of Fame by the Association for Accounting Marketing (AAM). He has also been a recipient of the NACVA Instructor of the Year Award and winner of the Journal of Accountancy Literacy Award. Previously he was recognized by the Illinois CPA Society with the Distinguished Service Award for outstanding service and commitment to the profession. Koltin is the author-editor of three books for professional services firms: CPA Firm Merger Strategies That Work, CPAs That Sell and the AICPA’s Marketing a Consulting Niche. He is a founding member of The Advisory Board, a think tank for the accounting profession, and has served on various advisory boards, including Outsource Partners International (OPI), the Association for Accounting Marketing (AAM), the National Association of Certified Valuation Analysts (NACVA) and H&R Block (HRB Business Services). Previously, Allan was the President and CEO of PDI, Global, Inc. which was the largest publisher of marketing newsletters for professional services firms. Allan originally sold PDI Global to H&R Block in 1998, buying it back in 2008, and then selling it again to Thomson Reuters in 2011. Prior to that, Allan was a Senior Partner in the Chicago-based accounting and consulting firm of FERS, where he served as the leader of the Investment Banking Group, as well as the Law Firm Consulting Group. At age 27, Allan had the distinction of being named the youngest partner in the history of the firm and was also a member of the firm’s Executive Committee. FERS was acquired by H&R Block in 1998. Allan attended both the University of Wisconsin – Madison and the University of Wisconsin – Milwaukee and received degrees in accounting and marketing. He lives in Chicago with his wife, Sharon, and his three children, Jack, Brian and Julia. His passion is facilitating retreats and providing coaching for firm leadership and partners. His specialties include strategy, governance, profitability, compensation, growth, human capital, and mergers and acquisitions.
Under the notice, any fund that fails to satisfy the 90 percent investment standard, and whose last day of its first six-month period, or last day of its taxable year, falls between April 1, 2020 and Dec. 31, 2020, is automatically deemed to have failed the test for reasonable cause. Funds may, therefore, wait to deploy capital until June 30, 2021, once the economic impact of the pandemic is more certain.
30-month substantial improvement period
Tangible property used in a trade or business counts toward satisfying the 90 percent investment standard if its original use commences in an opportunity zone, or it is substantially improved within any 30-month period beginning after the date it is acquired. In order to be deemed to be “substantially improved,” the improvements must double the adjusted basis of such property.
Pursuant to the notice, the 30-month substantial improvement period is tolled from April 1, 2020 to Dec. 31, 2020, thus extending the period in which to improve property by up to nine months, and allowing developers much needed relief in light of work shut down orders.
Working capital safe harbor
Investments in qualified opportunity fund businesses are treated as qualifying investments toward satisfying the 90 percent investment standard of a fund. These businesses must have certain ties to an opportunity zone, such as owning or leasing at least 70 percent of their assets in the zone and having at least 50 percent of their gross income derived from activities in the zone. Less than 5 percent of the average of the aggregate unadjusted bases of the property of such businesses can be held in the form of certain passive assets known as nonqualified financial property, but reasonable amounts of working capital held by the business are excluded from this category of assets.
Under the current regulations, a safe harbor rule allows qualified opportunity zone businesses to treat working capital assets as reasonable if, among other things, there is a written plan in place for the expenditure of such assets within 31 months (up to 62 months if certain additional requirements are met). If the safe harbor is satisfied, any cash held as working capital counts as a “good” property toward satisfying the 70 percent test. If the qualified opportunity zone business is located in a federally declared disaster area, up to an additional 24 months is allowed to expend these assets.
Initially it was unclear whether the 24-month extension applied, because President Trump, on March 13, 2020, declared a federal emergency, rather than declaring the entire country as a disaster zone. However, the notice states that, as a result of the president’s emergency declaration, any qualified opportunity zone business holding working capital assets under a safe harbor arrangement established before Dec. 31, 2020, is entitled to an additional 24 months to expend such assets.
12-month reinvestment period
Under the existing regulations, if a qualified opportunity fund sells qualifying property or receives a return of capital distribution from an investment in a qualified business, the proceeds qualify as “good” property under the 90 percent investment standard, provided they are reinvested in other qualifying property within 12 months. If any reinvestment plan is delayed due to a federally declared disaster, the fund is entitled to an additional 12 months to reinvest the proceeds, but the fund must invest the proceeds in the manner originally intended before the disaster.
The notice grants relief by confirming that, if any qualified opportunity fund’s 12-month reinvestment period includes Jan. 20, 2020, it has an additional 12 months to reinvest the sale proceeds, provided the proceeds are reinvested in the same manner as originally intended. This essentially grants relief to only those funds that sold property prior to Jan. 20, 2020, which is a limited population.
In sum, Notice 2020-39 grants taxpayers and fund managers much-needed extensions in order to satisfy the opportunity zone program requirements, allowing them to make sensible investments during these uncertain times.
