The Opportunity in Opportunity Zones

One of the more interesting and useful items to come out of the Tax Cut and Jobs Act of 2018 are the creation of so-called Opportunity Zones. An Opportunity Zone is a particular census tract which the government has designated as a distressed community, and investments in same are entitled to certain benefits vis a vis the investor’s capital gains taxes from such investment. The goal is to stimulate investments into such areas which would not otherwise have occurred. 

The benefits that Opportunity Zones provides are related solely to the timing and possible reduction of an investor’s capital gains taxes. The program won’t apply to ordinary income tax issues, and there are no credits or other type of incentives provided for in the program (its less exciting than some folks originally thought but still a large benefit to the right investors/projects/companies though). The Opportunity Zones program provides for a delay, reduction or elimination of capital gains taxes in three ways as set forth below:

  • First is a temporary tax deferral for any taxpayer who has capital gains but re-invests same, within 180 day time period, into an Qualified Opportunity Fund (discussed below). The gain is deferred but must be recognized on the earlier of the date on which the opportunity zone investment is sold or December 31, 2026 (there is some grey area with respect to holding the investment past December 31, 2026 and hopefully the IRS clears it up). You do not have to live or work in an opportunity zone, you just have to invest in it (in a company located in one or property located in one). IRS came out with this form for these re-investments –  Form 8949
  • Second is a step-up in basis for any capital gains that were invested  (i.e. re-invested) in an Qualified Opportunity Fund. The basis of the original investment is increased by 10% if the investment in the Qualified Opportunity Zone Fund is held by the taxpayer for at least 5 years, and by an additional 5% if held for at least 7 years, excluding up to 15% of the original gain from taxation.
  • Third is a total exclusion (i.e. the investor’s basis is increased to FMV) from taxable income of capital gains from the sale or exchange of an investment (but not the original capital gain which is handled by the second point above) in a Qualified Opportunity Zone Fund if held for more than 10 years.

The Opportunity Zone program allows funds to be set up, called Qualified Opportunity Zone Funds, which funds pool investor money (as a partnership or corporation) for investing in eligible property located in a Qualified Opportunity Zone (a list of such Qualified Opportunity Zones are set out in IRS Notice 2018-48 – https://www.irs.gov/pub/irs-drop/n-18-48.pdf  )

To become a Qualified Opportunity Zone Fund, an eligible corporation or partnership self-certifies by filing Form 8996, Qualified Opportunity Fund, with its federal income tax return. Early-release drafts of the form and instructions are posted, with final versions expected in December. The return with Form 8996 must be filed timely, taking extensions into account.

Federal Securities Laws applied to ICO’s – Initial Coin Offerings

New “coins” or tokens and their platforms are all the rage.  Bitcoin, Bitcoin Cash, Ethereum, Litecoin, Zcash, Dash, Ripple, Monero, the list goes on and on and new ones keep popping up.  The new coins are either entirely their own platform or they are derivations, i.e. spin-offs of one of the existing virtual currency platforms. Read more

New York Qualified Emerging Technology Company (QETC) Incentives

If your company operates in New York and meets the definition of a “qualified emerging technology company” (a “QETC”) it is eligible for New York tax credits.  Additionally if you are a New York State taxpayer and interested in investing in a QETC you may be eligible to claim a credit as well. Read more

New York State Manufacturer’s Real Property Tax Credit

If you are a “qualified New York manufacturer” doing business as a corporation and you paid real property taxes (either as the owner or as the lessee) for your business location where you perform the manufacturing activities, you are eligible for the New York State Manufacturer’s Real Property Tax Credit.

The Credit is equal to 20% of the eligible real property taxes paid by the manufacturer each year.   The manufacturer must exclude portions of the owned or leased real property that are not used in the manufacturing activities (such as parking lots, and common areas, etc.).

A “qualified New York manufacturer” is a manufacturer that either (1) has property in New York State of the type described for New York’s investment tax credit under Tax Law section 210.12(b)(i)(A) that has an adjusted basis for federal income tax purposes of at least $1 million at the end of the tax year, or (2) has all its real and personal property in New York State.

 

IRS Voluntary Disclosure Practice

Faced with the situation that you or your company has been misreporting income or miscalculating taxes, you should not stick your head in the sand and hope that it never catches up with you.  You should work with your accountant and attorney and calculate the amount due.

First, the IRS has two voluntary disclosure programs.  The first is for domestic voluntary disclosure of tax issues, which I am discussing here.  The other is a separate program for Offshore Account Voluntary Disclosure (to be discussed in a later post). Read more

Partnership Taxation: Substantial Economic Effect

Partnership taxation is a complex area of tax law. We’ll be walking through some of the issues you should be aware of.

The first is to ensure you are getting the deal you thought you were.  Partners (or LLC members where the LLC has multiple members and does not “check the box“) can agree on how to allocate the profit and losses of the business as they see fit in the agreement.  The allocations can be done in any manner the partners/members choose, provided that the allocations have “substantial economic effect.” See IRC 704(b); Treas. Reg. 1.704-1(b). Read more