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Taxpayers that are patiently waiting for schedules K-1 should have them by (or shortly after) September 15, 2020, which will leave another month to make an investment into a qualified opportunity zone fund (QOF) to reduce their income tax bill before the individual extended tax filing deadline. Either way, the taxpayer will part with funds on October 15, 2020. A QOF puts those funds towards an opportunity zone (OZ) investment, rather than it going straight to the government.

Example:

A taxpayer with a long-term capital gain of $1 million will have a federal capital gain tax liability of $200,000 (20%). If the gain is from the sale of marketable securities, the tax is $238,000 (inclusive of the 3.8% net investment income surtax). By rolling the $1 million gain into a QOF, the capital gain is deferred, and reported on the 2026 tax return with a 10% discount at $900,000(1). In essence, the deferral functions similar to an interest-free loan to make the investment in the QOF. If you live in a state that conforms to federal tax rules, the amount of your deferral and discount benefit will be greater.

In addition, the most significant opportunity zone benefit, particularly from an investment in real estate, is realized by holding the opportunity zone fund investment for at least 10 years.

An investment in real estate generates significant depreciation deductions, which shields income from that investment from ordinary income taxes. If the depreciation exceeds taxable income from the investment, the excess depreciation deduction can be used to shield income from other passive investments. In other words, an investor may be able to use losses from a QOF investment to offset income from other passive investments. Ordinarily, depreciation deductions are recaptured when the real estate investment is sold, thus making the deduction from depreciation a timing difference. However, depreciation deductions from a QOF investment are not recaptured and become a permanent tax savings. Additionally, appreciation in the market value of the OZ real estate is not taxed – another permanent tax savings(2).

Example:

A taxpayer makes a $1 million investment in a QOF. Over the 10 year holding period, the investor is allocated $900,000 of depreciation deductions, which shield the taxpayer from $356,400 of federal income taxes (39.6%). At disposition, the QOF investment returns $2.2 million, the market appreciation of $1.2 million is not taxed, saving the investor another $240,000 in federal taxes (20% capital gain rate), for a total of $596,400 permanent tax savings. The permanent savings will be greater for taxpayers residing in a state that conforms to federal tax rules.

Timing is critical – revised OZ investment “windows”

Capital gains have to be invested in a QOF within a prescribed period of time in order to qualify for opportunity zone benefits. Gains reported on a K-1 from a partnership or LLC have a unique set of rules, because investors may not know how much gain is allocable to them as of the transaction date or until they receive their K-1. Also, COVID-19-related tax relief favorably impacted the OZ investment window for 2020. The table below summarizes the timing to make a qualifying investment in a QOF:

Capital gain not reported on a K-1 – 180 days from the date of the transaction

Capital gain reported on a K-1(3)

  1. 180 days from the date of the transaction; or
  2. 180 days after the final day of the reporting entity’s tax year (typically December 31 for flow-through entities); or
  3. 180 days from the original tax return due date of the reporting entity (March 15 for entities with a December 31 year-end)

COVID-19 OZ timing update - if a taxpayer’s 180th day to invest in a QOF would have fallen on or after April 1, 2020, and before December 31, 2020, the taxpayer now has until December 31, 2020 to invest that gain into a QOF.This also means that a taxpayer could amend a return filed by July 15, 2020 (or one filed by October 15, 2020) if they elect to invest into a QOF before December 31, 2020.

Timing example one:

Stock positions sold on February 17, 2020 would normally have a QOF re-investment expiration date of August 15, 2020. However, coronavirus relief extends the expiration date to December 31, 2020.

Timing example two:

A capital gain from a sale on April 28, 2019 that is reported on a K-1 (entity has a fiscal year-end of December 31) to a taxpayer normally offers three windows in which to make a QOF investment:

  1. April 28, 2019 plus 180 days to October 25, 2019; and/or
  2. December 31, 2019 plus 180 days to June 28, 2020; and/or
  3. March 16, 2020 plus 180 days to September 12, 2020.

However, coronavirus relief also extends the expiration date to December 31, 2020.

As we approach October 15

The permanent tax savings from making an investment in a QOF that invests in real estate can be substantial. We are poised to help you evaluate vetted QOF investment options to help you make a well-informed choice before paying substantial capital gain taxes.

For more information on this topic or to learn how Baker Tilly specialists can help, contact our team.

  1. Assumes the QOF investment is held for at least five years.
  2. The non-recapture of depreciation and elimination of taxable gains (a “step-up in basis”) occurs once the QOF investment has been held for at least 10 years.
  3. The taxpayer may elect to use any or more of the three time frames to make a qualifying investment in a QOF.
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