The Tax Cuts and Jobs Act (TCJA,) known for creating Opportunity Zones, is often celebrated for its potential to move billions of dollars into low-income communities. However, there remains an open question as to whether this program will ultimately serve to add value or extract values, from these communities.
Opportunity Zones (OZs) are defined as “economically-distressed communities where new investments, under certain conditions, may be eligible for preferential tax treatment.” First conceived in April of 2018, OZ plans are now in place for communities in all 50 states this year. How it works is that each state nominates blocks of low-income areas by census tract, which are then certified by the Secretary of the U.S. Treasury via his delegation of authority to the Internal Revenue Service. Through the IRS, investors can file a Form 8896 to create a Qualified Opportunity Fund — vehicles structured as either a partnership or corporation for the purpose of investing in an OZ census track, whether in real estate or directly in businesses through equity. The fund is required to hold at least 90% of its assets in that qualifying OZ area.
OZs are places in the U.S. where over 30 million people live and work across our country. They cover downtown, industrial, suburban, and rural areas. They’re part of daily life for a lot of people.
To qualify, the Opportunity Fund must invest more than 90% of its assets in a Qualified Opportunity Zone Property located in an Opportunity Zone. The property must be significantly improved, which means it must be an original use, or the basis of the property must be double the basis of the non-land assets. Capital gain taxes are deferred for investments reinvested into investments in these zones and, if the investment is held for ten years, all capital gains on the new investment are waived. Opportunity zones are census tracts designated by state authorities. As of Pari, 8,764 census tracts have been so designated.
An investor must invest in an Opportunity Fund by the end of 2019 to meet the seven-year holding period and be able to exclude 15% of the deferred capital gain. An investor may exclude 10% of the deferred capital gain by investing in an Opportunity Fund by the end of 2021 to meet the five-year holding period.
An investor who realizes certain capital gain income may reinvest the capital gain in an Opportunity Fund within 180 days.
Prior to the law creating Opportunity Zones, an investor could defer capital gains taxes by trading one asset with another asset in the same asset class by using a Section 1031 exchange. Opportunity Zones now allow an investor to defer capital gains taxes by trading one asset with another asset in a different asset class.