Opportunity Zone Magazine Volume 1, Issue 3 | Page 11

TREASURY RESPONDS TO THE COVID-19 CRISIS BY OFFERING RELIEF FOR THE OZ INDUSTRY 11 One requested change that does not appear to be addressed relates to the ability to amend or modify Working Capital Plans that were created prior to the COVID-19 crisis. 31-month Working Capital Safe Harbor Periods for each subsequent infusion of Working Capital Assets to the extent that the aggregate duration of all of the Working Capital Safe Harbor Periods do not exceed 62 months from the date of the first infusion of cash. The regulations provide that each single infusion needs to independently satisfy the working capital safe harbor provisions. Accordingly, a subsequent infusion of cash to the QOZB occurring no later than the end of the 55-month period (taking into account a previous infusion of cash that obtained the additional 24-months under the notice) and subject to a Working Capital Plan could extend the aggregate Working Capital Safe Harbor Periods by an additional 31 months (and beyond the 55-month period). Notable Comments: One requested change that does not appear to be addressed relates to the ability to amend or modify Working Capital Plans that were created prior to the COVID-19 crisis. Many investors that had eligible gains allocated to them by pass-through entities on Dec. 31, 2018 invested in QOFs in June 2019 (prior to the end of their 180-day investment period). Those QOFs were required to invest such proceeds in QOZBs no later than Dec. 31, 2019 and such investments required Working Capital Plans. As a result of the COVID-19 crisis, some of these Working Capital Plans can no longer be fulfilled. For example, a Working Capital Plan may have designated an amount of Working Capital Assets for the construction of a hotel project at a certain address in an OZ. The financing for this hotel project may no longer be available and the QOZB may want to amend the Working Capital Plan to change the project to the construction of a multifamily building. The notice does not appear to address this issue. THE REINVESTMENT PERIOD FOR THE QOF EXTENDED 12 MONTHS Background: If a QOF receives cash proceeds from the return of capital or the sale or disposition of some or all of its OZP and the QOF reinvests some or all of such proceeds in OZP by the last day of the 12-month period beginning on the date of the distribution, sale, or disposition, then the proceeds, to the extent that they are so reinvested, are treated as OZP for purposes of the 90% requirement. This prevents the QOF from incurring penalty for holding such cash on the QOF testing dates for the 90% requirements during these 12 months. However, the QOF must continuously hold the proceeds in cash, cash equivalents, or debt instruments with a term of 18 months or less. If the reinvestment is delayed as a result of a Federally declared disaster, then the QOF may receive up to an additional 12 months to reinvest such proceeds as long as the QOF invests such proceeds in the manner originally intended before the disaster. The Notice: The notice provides that a QOF’s 12-month reinvestment period (to reinvest in QOZP) for the proceeds from the QOF’s sale or disposition of QOZP or a redemption of qualified opportunity zone stock is extended by an additional 12 months where the original 12-month reinvestment period included Jan. 20, 2020, as long as the proceeds are invested in a manner originally intended by the QOF prior to Jan. 20, 2020. This provision has limited applicability. This is due to the fact that the QOF needed to be in the 12-month reinvestment period on Jan. 20, 2020 in order to receive the additional 12 months described above. This notice has been welcomed by the OZ industry. As we continue to deal with the COVID-19 health crisis, federal income tax incentives for businesses will likely be necessary for economic recovery efforts. The OZ incentive could be a critical economic and community development tool to assist in these efforts by incentivizing equity investments for real estate projects and operating businesses. This notice may be a first step in these efforts. Marc L. Schultz He currently chairs Snell & Wilmer’s Tax Credit Finance and Renewable Energy practices and founded and cochairs the Opportunity Zone industry group. Schultz regularly advises fund sponsors in forming and structuring Opportunity Funds and drafted and provided technical advice on a number of comment letters with respect to the Opportunity Zone regulations. Schultz recently served on panels at the White House and Small Business Administration Opportunity Revitalization & Entrepreneurship Summits. He has also been a speaker and panelist at statewide Opportunity Zone conferences. OPPORTUNITYZONE.COM