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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.
Allyson is the founder of Women Who Tech, which brings together 10,000+ diverse engineers, entrepreneurs, startup founders, investors, and industry leaders who are transforming the world and inspiring change through technology. As founder, she has produced several Women Who Tech TeleSummits packed with the most inspiring tech changemakers, disruptors, and startup entrepreneurs, ranging from Arianna Huffington, founder of Huffington Post, to Rashmi Sinha, co-founder of SlideShare, acquired by LinkedIn.
In 2015, Allyson launched the Women Startup Challenge in partnership with Craig Newmark, founder of craigslist, the Craig Newmark Philanthropic Fund, and Craig Newmark Foundation, to help fund and showcase women-led startups focused on solving problems for people, businesses, and the planet. Since its inception, the Women Startup Challenge has launched four pitch competitions across the U.S. and one in Europe, with 1700+ applications and over $1 million raised in cash and prizes for women-led ventures.
Allyson is also the cofounder of Rad Campaign, one of the top web agencies that has helped hundreds of organizations, advocacy campaigns, and philanthropists build hard-hitting campaigns, compelling websites, and data visualizations focused on increasing advocacy, donations, and community engagement. Her campaigns have been recognized with several prestigious web awards and featured on several top media networks ranging from CNN to NPR to BuzzFeed, and the Daily Show with Jon Stewart.
Allyson has been named one of the “Most Influential Women in Tech” by Fast Company, a “Tech Titan” by the Washingtonian, and “one of the top 30 women entrepreneurs to follow on Twitter” by Forbes for her leadership roles in technology.
Craig Newmark is Web pioneer, philanthropist, and leading advocate on behalf of trustworthy journalism, voting rights, veterans and military families, and other civic causes. In 2017, he became a founding funder and executive committee member of the News Integrity Initiative, administered by the CUNY Graduate School of Journalism, which seeks to advance news literacy and increase trust in journalism.
In 2016, he created the Craig Newmark Foundation to promote investment in organizations that effectively serve their communities and drive broad civic engagement at the grassroots level. Amid growing concerns about the proliferation of “fake news” in the course of the presidential campaign, one of the foundation’s first donations went to the Poynter Institute to create the Craig Newmark Chair in Journalism Ethics. Newmark is widely credited for his leadership in promoting “news we can trust.”
After working at IBM as an engineer for nearly twenty years, Craig became a consultant to major firms like Charles Schwab, and in 1995 as the Internet was starting to take-off, he began curating a list of San Francisco arts and technology events he personally emailed to friends and colleagues. People were soon calling it "Craig's List,” and when Craig turned it into a company, he monetized it only minimally, opting for a business model that prioritized "doing well by doing good." Today more than 5 billion ads have been posted on the site, the vast majority for free. While Craig remains chairman of craigslist, he has not been involved in management since 2000. He continues to serve as a customer service rep so that he can stay connected to the community of craigslist users.
In 2012, Craig was inducted into the Internet Hall of Fame. He was named “Nerd-in-Residence” by the Department of Veterans Affairs Center for Innovation in 2013. In 2015, craigslist received an award from the FBI in recognition of its undisclosed cooperation with the Bureau in combatting human trafficking.
Craig serves on the board of directors of a range of nonprofits including: journalism organizations (Center for Public Integrity, Columbia Journalism Review, Poynter Foundation, Sunlight Foundation); veterans organizations (Blue Star Families, Iraq and Afghanistan Veterans of America, Vets In Tech); women’s groups (Girls Who Code, Women in Public Service Project) and consumer organizations (Consumers Union/Consumer Reports). In addition, he serves on the advisory boards of nearly twenty other nonprofit organizations including, DonorsChoose, EFF, New America Foundation, Voto Latino, Wikimedia Foundation, Women Who Tech, and many others.
Born in Morristown, New Jersey in 1952, Craig earned degrees in computer science from Case Western Reserve University. He lives in San Francisco and enjoys bird- and squirrel-watching, science fiction, TV, and Dad jokes.
Craig communicates regularly through his own blog at craigconnects.org and through Facebook, Twitter, LinkedIn, Medium, and HuffPost. He also travels the country speaking about issues and appearing on behalf of organizations he supports.
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.
