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06/26/2019. ECONOMIC DEVELOPMENT IN OPPORTUNITY ZONES. COMMUNITY INVESTMENT FUNDAMENTALS OF OPPORTUNITY ZONES AND THE EFFECT OF THE REGULATIONS. Marcy Newman Hart. Introduction.
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06/26/2019 ECONOMIC DEVELOPMENT IN OPPORTUNITY ZONES
COMMUNITY INVESTMENTFUNDAMENTALS OF OPPORTUNITY ZONES AND THE EFFECT OF THE REGULATIONS Marcy Newman Hart
Introduction • The Qualified Opportunity Zone Program was established under The Tax Cuts and Jobs Act, signed into law December 2017 • Program has its roots in prior incentives for Empowerment Zones and New Markets Tax Credits • Only Bi-Partisan legislation (sponsored by Cory Booker and Tim Scott) in The Tax Cuts and Jobs Act
Introduction • Codified in IRC Sections 1400Z-1 and 1400Z-2 • First set of guidance released October 19, 2018 • Second set of guidance released April 17, 2019 • Additional guidance is expected by year end • Promoting investment in “designated census tracts” • Designations have been made in all 50 states- more than 8,700 tracts in all • Heralded as a program with potential to become one of the most impactful federal incentives ever enacted to encourage capital growth
Commonwealth of Pennsylvania Initiatives • https://dced.pa.gov/programs-funding/federal-funding-opportunities/qualified-opportunity-zones/
City Involvement City of Philadelphia is working to promote the OZs • https://www.philadelphiadelivers.com/opportunity-zones
Fundamental Tax Benefits • Deferral- Sale or 2026 • 5 years- 10% elimination of roll-over gain • 7 years-15% elimination of roll-over gain • Deferral Election: IRS Form 8949. Election is filed in the year the Taxpayer would have recognized the capital gain (absent an election) • Gain retains the character that exists on initial date of deferral. Gain taxed at capital gain rates when recognized (not rate in effect when deferred) • Gain Elimination- 10 Year Hold
Fundamental Tax Benefits • Who gets the benefits: • A taxpayer that rolls over long term or short term capital gains within 180 days of realization of gain into a Qualified Opportunity Fund (“QOF”) • Taxpayer includes individuals, corporations, partnerships, other pass-through entities • The taxpayer MUST acquire the interest in the QOF by making a capital contribution to the QOF
Guidance • The Act provided an initial framework • Since enactment, practitioners and industry participants were for the most part sidelined from utilizing the program due to certain ambiguities and open issues • QOF certification, timing of investment, what types of “gain” qualify, “original use”, substantial improvement test- to name a few • Industry had been looking for guidance to address these issues and in October and April Treasury and IRS issued proposed regulations
Guidance • The Proposed Regulations are proposed to be effective date of publication in the Federal Register as final • Generally taxpayers may rely on the provisions of the Proposed Regulations
Qualified Opportunity Funds • OZ Fund Certification • A QOF is self-certified by attaching Form 8966 with the first tax year of the QOF and then filed each year thereafter • To be a QOF must meet three tests on an ongoing basis: • Organizational Test • Purpose Test • Asset Test
QOF Tests • Organization Test: To be a QOF, an entity must be organized as a corporation, or partnership, or LLC treated as a partnership for tax purposes • A pre-existing entity can self-certify and establish an initial date as a QOF • Purpose: Must be formed for the purpose of investing in QOZ Property (Form 8996 will require a description of QOZ business or businesses) • Asset Test: 90% Test
QOZ Property • Stock or Partnership Interest • Business Property • Acquired after Dec 31, 2017 • From an “unrelated party” (no more than 20% common ownership) • Original Use in OZ or QOF “substantially improves”- double basis in any 30 month period • Substantially “all” QOZ Property must be located in OZ
Structure • Direct Investment- in QOF (QOF owns QOF Business) • Investment in QOF that invests in 3rd entity (OZ Business or Property Subsidiary) (QOF owns subsidiary partnership or corporation that conduct QOZ Business) • Subsidiary-70% of its tangible property qualifies as QOZBP: Acquired from unrelated party Original Use or Substantial improvement Substantially all property located within the OZ 50% of gross income is derived from active trade or conduct Substantial amount of intangible property is used in active conduct or busine Less that 5% NQFP NOT a “sin” business • Typically working capital was excluded- now per Regs allowed so long as plan provided to IRS
Examples of Qualifying Subsidiary Businesses • Affordable and market rate housing • Mixed use developments • Retail-grocery stores • Research facilities • Sports facilities • Hotels • Restaurants • Health clinics • Office buildings • Manufacturing
Examples of Businesses that DO NOT QUALIFY • Banks • Branch of existing business (fails 50% test) • Any business if large portion of business is liquor sales
Highlights of Regulations • Operating Businesses • Investor Issues • Fund Operations • Real Estate
Future Proposed Regulations • Interim gains at fund level • Reporting requirements
FOR QUESTIONS ABOUT OPPORTUNITY ZONESPLEASE CONTACT:Marcy Newman HartMNHart@foxrothschild.com
Golaski Labs • Acquisition and rehabilitation of a 25,844 SF former manufacturing facilityon • 0.79 acres of land at 4537 WayneAvenue • Development includes 40,000 SF mixed-use complex with 35high-tech residential rental units occupying 21,000SF • 4Commercialtenantsoccupying19,000SFincludingrestaurant,offices and a world-class multi-cultural innovative and collaborative co-working entrepreneurialnetwork
Golaski Labs – NeighborhoodImpacts • Creating 35 high-tech rental units including 26 market rate units and 9 80% AMI affordable rental units with resident social space and fitnesscenter • Retaining 15 and creating 35 high quality FTE positions with 99% of new positions paying LivingWage • Transit-oriented facility located 2 blocks from Wayne Junction,the • SEPTA Bus Depot and Commuter Railstation
Project Details – CommercialTenants • LaKay Restaurant – 2,500 SF restaurant featuring open kitchen studio/restaurant and community garden operated by famed “Top Chef”, Chef SylvaSenat. • P4 Impact Hub – multi-cultural co-working space to serve as an incubator and training facility for start-ups, early stage and establishedbusinesses. • Innovation Center- a joint venture between The Business Center and Eastern Minority Supplier Development Council to operate a light manufacturing makers'space • Roof Meadow Studio and Roof Meadow Services, Inc. – new headquarters for landscape architecture and civil engineering design firm specializing in greenroofs.
Before… Driving growth to every corner ofPhiladelphia
After… Driving growth to every corner ofPhiladelphia
Financing Structure - NMTC & Opportunity FundInvestment Driving growth to every corner ofPhiladelphia
OZ Lessons Learned • OZ Investors still expect a market rate return • The OZ designation has increased the investor pool in marginalized neighborhoods • OZ investment does not “play nice in the sandbox” with NMTCs • The use of Convertible Notes
Panel Discussion Anne Fadullon, Director of Planning and Development, City of Philadelphia Marcy N. Hart Fox Rothschild, LLP Leslie Smallwood-Lewis Mosaic Development Partners Lawrence McComie PIDC Shalimar Thomas North Broad Renaissance