Borderland Tax Tips: Issue #1: Last Chance for Maximum Opportunity Zone BenefitsBy David S. Hansen
Background:On December 22, 2017, The Tax Cuts and Jobs Act of 2017 (the “TCJA”) was passed into law in an atmosphere of bitter partisanship. So bitter in fact, that Democrats successfully initiated a maneuver to change the official name of the TCJA to “The Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018.” For brevity sake, we will continue to use the more commonly accepted name of TCJA. However, the long form name referring to “reconciliation” is important to note because it alludes to some quirky aspects of the law that not many people are aware about, and which impact that newly created “opportunity zones.” Under the procedural rules of the Senate, no law passed by reconciliation (a procedure allowing a bare majority of votes to pass a law) can increase the deficit after a decade. To avoid increasing the deficit after 10 years, the TCJA makes some tax cuts (mostly on corporations) permanent, temporarily lowers other taxes (mostly on politically popular groups like individuals) for ten years, and permanently eliminates certain deductions (effectively raising taxes) on corporations and individuals. In other words, after ten years, the temporary cuts expire, and the permanent cuts are offset by permanent increases, netting to zero. Republicans anticipated that after the reconciliation it would be an easy political case to make the temporary tax cuts on politically favorable groups permanent and restore some of the more popular deductions under a regular-order bill (not subject to the deficit restrictions) that could win enough support to overcome a filibuster (60 votes). However, the public soured on the tax cuts and the 2018 elections resulted in divided government and an even more partisan atmosphere. In such an atmosphere it may well be that the temporary tax cuts will not be made permanent.
Opportunity Zones:One of the temporary tax cuts created an incentive for investment in “opportunity zones.”1 The rules of opportunity zones are complex, however, they create powerful tax incentives to invest in impoverished areas labeled “opportunity zones.” Many of such zones are in El Paso County, Texas and Doña Ana County, New Mexico. The specific opportunity zones can be identified on a map published by the US Department of Treasury Community Development Financial Institutions Fund here. The tax incentive is triggered where (1) a taxpayer sells a capital asset at a gain and (2) within 180 days of the gain triggering event, invests the proceeds in a “qualified opportunity fund.” Assuming the qualified opportunity zone fund properly invests the gains in a qualified opportunity zone and follows a number of other technicalities, the following three benefits are gained:
- Gain Deferral – Tax on the gain is deferred until the earlier of the investment being sold/exchanged or December 31, 2026.2
- Partial Forgiveness of Original Gain – If the investment is held for at least five years, 10% of the gain is effectively forgiven (basis in the investment increases 10%).3 If the investment is held for at least seven years, an additional 5% of the gain is effectively forgiven (basis increased to 15%)4 (“5 Year Benefit” and “7 Year Benefit” respectively)
- Total Forgiveness of Appreciation in Investment (“10 Year Benefit”) – If the investment is held for at least ten years, in addition to 15% of the original gain being forgiven, all of the gain from the appreciation of the opportunity zone investment is eliminated (basis increased to FMV of the appreciation in value).5
1. Opportunity zones and their operation are described in Internal Revenue Code (“IRC”) 1400Z-1 and 1400Z-2. 2. IRC 1400Z-2(b)(1) 3. IRC 1400Z-2(b)(2)(B) 4. Id. 5. IRC 1400Z-2(c) 6. See IRC 1400Z-2(a) and (b). 7. Note: IRC 1400Z-1 and 2 do not specify that the eligible capital gain must be long term capital gain. The tax benefits are even greater when you can defer and forgive short term capital gain that would otherwise be taxed as ordinary income.
|Invests in Opportunity Zone||Invests Outside of Opportunity Zone||Benefit from Use of Opportunity Zone|
|January 1, 2018||$1,000,000 = Investment (note: if sold immediately, worth $761,000.00)||$762,000 = Original Proceeds – Original Capital Gain Tax = “Non-O Investment”||N/A = Same if opportunity fund sold immediately|
|January 1, 2023 (five years)||$996,326 = (Investment grown at 5% annually = $1,276,282) – 90% of Original Capital Gain Tax – 23.8% of Investment appreciation (= 23.8% x ($1,276,282 – $1,000,000))||$922,421 = (Non-O Investment grown at 5% = $972,527) – 23.8% of Non-O Investment appreciation (= 23.8% x ($972,527 – $762,000))||$73,905|
|January 1, 2025 (seven years)||$1,107,911 = (Investment grown at 5% annually = $1,407,100) – 85% of Original Capital Gain Tax – 23.8% of Investment appreciation (= 23.8% x ($1,407,100 – $1,000,000))||$998,380 = (Non-O Investment grown at 5% = $1,072,211) – 23.8% of Non-O Investment appreciation (= 23.8% x ($1,072,211 – $762,000))||$109,530|
|January 1, 2028 (ten years)||$1,416,480 = (Investment grown at 5% annually) – 85% of Original Capital Gain Tax recognized at the end of 2026 – Nothing||$1,127,164 = (Non-O Investment grown at 5% = $1,241,218) – 23.8% of Non-O Investment appreciation (= 23.8% x ($1,241,218 – $762,000))||$289,316|
The Flaws Including the Secret 2019 Deadline:The most obvious and significant flaw in the opportunity zone structure is the expiration of the opportunity zones at the end of the 10th calendar year after designation pursuant to IRC 1400Z-1(f). Had that not been addressed by proposed regulations, the largest benefit of the opportunity zones would have been lost if investments were not made on or before December 31, 2018 (the date ten years prior to the expiration of the opportunity zones). Fortunately, Proposed Treasury Regulation 1.1400Z-2(c)-1(b) corrects that problem by stating that:
|Proceeds After 10 Year Liquidation:||$1,310,076.18||$1,302,831.55||$1,283,806.67||$1,128,122.33|
|Cost of Delay:||-$7,244.63||-$26,269.52||-$181,953.85|