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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.
Carter Pape has covered cybersecurity, financial crime and emerging technology for American Banker since January 2022.
Pape, reporting from Sacramento, California, connects technical complexities to their practical consequences. He examines how cybercriminals target and infiltrate banks and how the technologies reshaping the world (such as AI and quantum computing) create new risks for banks and their customers.
Pape's work has earned recognition at the regional and national levels, having earned him an award and award finalist recognitions from the American Society of Business Publication Editors and SIIA.
Highlights of Pape's work include:
- No longer optional: Cyber risk oversight for boards, which examined the expanding liability exposure facing bank directors as regulators raise expectations for cyber governance;
- Inside a sophisticated, foiled cyber-heist targeting ATMs, an account of a coordinated attack on bank cash infrastructure and the defenses that stopped it;
- The promise and perils of QR codes in banking, which explored how a ubiquitous consumer technology became a vector for financial fraud.
- How quantum computers work, and how banks can use them, which broke down the physics and engineering of quantum computation and assessed the realistic near- and long-term implications for the banking industry
- Main Street banks can avoid Wall Street's WhatsApp fines. Here's how. This article explained how community banks could navigate SEC enforcement around personal device usage for work communications.
Pape's broader coverage at American Banker addresses data breaches, fraud prevention, regulatory compliance, artificial intelligence in financial services and the evolution of digital banking.
Before joining American Banker in January 2022, Pape spent three years as a reporter at The Times-Independent in Moab, Utah, where he was one of four full-time journalists covering a county of 10,000 people.
Pape reported on public lands, local government, housing and more. He also rebuilt the publication's website from the ground up, earning the Utah Press Association's Best Website award in 2019 for the redesign.
Pape's reporting on Moab won recognition from the Utah Press Association for excellence in government and politics reporting (first place) as well as general news (second place) and education coverage (second place).
Pape holds a degree in mathematics from North Carolina State University. At NC State he became news editor of the student newspaper, Technician, to get a break from the analytical and technical work of mathematical proofs. The experience inspired him to pursue a career in journalism.
Alongside his seven years as a journalist, Pape brings more than a decade of programming experience, having interned as a software developer for companies including IBM. He continues to regularly tinker with Python, Docker and shell scripting in his free time.
Daniel Wolfe is editor-in-chief of Digital Insurance.
Most recently, he was director of data services at Arizent, which publishes DI and American Banker. In this role he managed the company's editorial use of automation and AI, with the mission of expanding quality data journalism and products across all brands.
Previously Daniel headed American Banker's payments and credit union coverage, and before that he was editor-in-chief of PaymentsSource, a sister publication that combined with American Banker in 2021. Prior to that, Daniel held roles at American Banker including tech and risk management editor; technology, cards and payments editor; and technology reporter. Throughout his career, Daniel has taken a central role in hosting leading industry conferences including Payments Forum, Card Forum and PayThink. He has appeared on Yahoo! Finance and received the American Society of Business Publication Editors' national silver award for sustainability reporting in 2024 for his coverage of the credit card industry's environmental impact.
He has a master's degree in print journalism from Boston University's College of Communication and a bachelor's degree in English from SUNY Binghamton.
Dysart is an Internet speaker and business consultant based in Manhattan. Reach him at (646) 233-4089.
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.
