HCBA Lawyer Magazine Vol. 29, No. 2 | Page 57

a neW MeChanisM for gain deferral Tax law Section Chair: Christopher Dingman - Barnett, Bolt, Kirkwood, Long & Koche, P.A. a taxpayer can sell property of any type and defer gain from the sale by reinvesting the gain in a “qualified O opportunity fund.” ne of the more exciting tax planning opportunities made available by the passage of the 2017 Tax Cuts and Jobs Act relates to the ability to shield gain from the sale of property by reinvesting proceeds from such gain into what are known as “qualified opportunity zones,” which are low-income communities designated by each state. Under Internal Revenue Code §§ 1400Z-1 and 1400Z-2, a taxpayer can sell property of any type and defer gain from the sale by reinvesting the gain in a “qualified opportunity fund” within 180 days of the sale. A qualified opportunity fund is a partnership or corporation that invests 90 percent of its assets into a business within a qualified opportunity zone. Among other requirements, at least 50 percent of the qualified business’s total gross income must be derived from the active conduct of a qualified business (specific businesses such as golf courses, country clubs, massage parlors, and racetracks are excluded). By reinvesting the proceeds into a qualified opportunity fund, a taxpayer can defer gain until the sooner of when its interest in the qualified opportunity fund is sold or December 31, 2026. In addition to this general gain deferral, the tax NOV - DEC 2018 | HCBA LAWYER code provides that property that is held for five years or seven years will have a basis increase resulting in a portion of the pre-rollover gain being entirely excluded (ten percent and an additional five percent, respectively). As a potentially even more dramatic benefit, property held within a qualified opportunity fund for ten years will have its basis increased to its fair market value at the time of ultimate sale (meaning that gains within the opportunity fund would be excluded from income). So where do we go from here? Congress has provided a significant tax benefit intended to encourage investment in low-income commu - nities, and several areas within Hillsborough County have been designated as qualified opportunity zones. Still, commenters note several open items that will need to be resolved before taxpayers en masse feel comfortable taking advantage of the provision. Among those items that remain unresolved (as of the date of this writing) and may reasonably delay a taxpayer’s desire to deploy capital for purposes of taking advantage of the new provisions, taxpayers will need clarity as to: (a) whether depreciation recapture, which recasts certain capital gains as ordinary income to the extent previously depreciated would be eligible for exclusion; (b) given that the applicable statute directs that “substantially all” of a business’s tangible property must be “opportunity zone business property,” what proportion satisfies the “substantially all” requirement; and (c) whether residential rental property qualifies as an opportunity zone business. Proposed guidance is expected to be forthcoming from the Department of Treasury and the Internal Revenue Service. Such guidance should foster additional confidence and certainty with respect to the practical benefits of an already rather enticing new tax planning opportunity. Author: Steven D. Shapiro – Barnett, Bolt, Kirkwood, Long & Loche, P.A. students and government attorneys pay reduced membership rates. Join at hillsbar.com. 55