New IRS Guidance on How to Defer Capital Gains from Stock Sales Though Investment in a Qualified Opportunity Fund

The IRS recently issued proposed regulations to address gains that may be deferred when taxpayers invest in a qualified opportunity fund (QOF). This is a great opportunity for clients to defer capital gains from sale of stocks and to spur investment in designated opportunity zones.

Click to open document in a browser the proposed regulation.

The proposed regulations also withdraw and replace placeholder provisions in an earlier set of proposed regulations. These concern:

  1. The definition of "substantially all"
  2. Transactions that can trigger includible gain
  3. The timing and amount of deferred gain that is included
  4. The treatment of leased property used in the qualified opportunity zone (QOZ) business
  5. The use of QOZ business property in the QOZ
  6. The sourcing of income to the QOZ business
  7. The reasonable period for a QOF to reinvest proceeds from the sale of qualifying assets

addition, within a few months the IRS expects to address administrative rules
for a QOP that fails maintain the required 90 percent investment standard, as
we well information reporting requirements.

the IRS expects to revise Form 8996, Qualified Opportunity Fund, for 2019 tax
years and subsequent years. These revisions may require additional information,
including the employer identification number (EIN) for the QOF business, and
the amounts invested by QOFs and QOF businesses in particular QOZs.

Substantially All” for QOZ Business

The 2018
regs provided that a trade or business satisfies the "substantially
all" test for a QOZ business if at least 70 percent of its tangible
property is qualified opportunity zone business property. The new proposed regs
generally extend this 70-percent threshold to the "substantially all"
tests for use. However, in the holding period context, the "substantially
all" threshold is 90 percent.

Original Use of Purchased Tangible Property

proposed regulations generally provide that the "original use" of
tangible property acquired by purchase by any person commences on the date when
that person or a prior person:

  1. first places the property in service in the qualified opportunity zone for purposes of depreciation or amortization; or
  2. first uses the property in the qualified opportunity zone in a manner that would allow depreciation or amortization if that person were the property’s owner.

tangible property will satisfy the original use requirement with respect to a
QOZ so long as the property has not been previously used (that is, has not
previously been used within that QOZ in a manner that would have allowed it to
depreciated or amortized) by any taxpayer

addition, a building or other structure that has been vacant for at least five
years before being purchased by a QOF or QOZ business satisfies the original
use requirement. Improvements made by a lessee to leased property satisfy the
original use requirement and are considered purchased property for the amount
of the unadjusted cost basis of the improvements.

can be treated as QOZ business property only if it is used in a trade or
business of a QOF or QOZ business. The holding of land for investment does not
give rise to a trade or business, and the land cannot be QOZ business property.
Anti-abuse rules determine whether unimproved land can be qualifying property.
However, other purchased real property generally must be substantially
improved, as determined on an asset-by-asset basis.

Leased Tangible Property in QOZ

tangible property may be QOZ property if:

  1. the lease is entered into after 2017, and
  2. substantially all of the property’s use is in a QOZ during substantially all of the lease period.

the first-use requirement does not apply to leased tangible property. The
leased property can generally also be acquired from a related person, though
several conditions apply. The proposed regs also provide methods for valuing
the leased property.

QOZ Businesses

proposed regs:

  1. provide that in determining whether a substantial portion of intangible property of a QOZ is used in the active conduct of a trade or business, a substantial portion is at least 40 percent;
  2. address real property that straddles a QOZ;
  3. provide three safe harbors and a facts-and-circumstances test for determining whether a corporation or partnership derives at least 50 percent of its gross income from the active conduct of a qualified business;
  4. defined "trade or business" by reference to Code Sec. 162, except that the ownership and operation (including leasing) of real property used in a trade or business can also be the active conduct of a trade or business; and
  5. provide a safe harbor for working capital.

Other QOZ, QOF and QOZ Business Rules

proposed regs also address:

  1. Section 1231 gains
  2. relief with resect to the 90 percent asset test, including relief for newly contributed assets and QOF reinvestments
  3. the amount of an investment for purposes of the deferral election
  4. inclusion events, the timing on basis adjustments, includible amounts, and special rules for partnerships and S corporations
  5. gifts and bequests
  6. exceptions for disregarded transfers and some non-recognition transactions
  7. distributions and contributions
  8. consolidated return provisions
  9. holding periods and tacking rules
  10. anti-abuse rules
  11. special rules for Indian tribes and tribally leased property.
The Orange County Tax Attorneys at Wilson Tax Law Group have experience in qualified opportunity fund (QOF) and qualified opportunity zone (QOZ) businesses.   If you would like to schedule a consultation to discuss or have questions, you can reach the Wilson Tax Law Group at 949-397-2292 (Newport Beach Office) or 714-463-4430 (Yorba Linda Office).

Feeling Stressed its Tax Day - No Worries - File a Return Extension

Anyone can request an automatic tax-filing extension. If fact some people get extra time without asking. The IRS estimates that more than 14.6 million taxpayers will get an automatic extension this filing season, either by filing a form or making an electronic tax payment. But some taxpayers, such as disaster victims, those serving in a combat zone and Americans living abroad, get more time, even if they don’t ask for it. Just remember the extension filing only applies to the return due not - not the payment date. The tax payment date cannot be extended and it remains April 15th. To request more details on each of these special tax-relief provisions concerning automatic extensions or the payment due date contact Wilson Tax Law Group, APLC or call us at 949-397-2292.

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