Frequently Asked Questions
How do you Roll Over a Capital Gain Into an Opportunity Fund?
A: If you’ve realized a substantial capital gain, you may be looking for the right investment vehicle to protect your earnings. What if you could reduce your tax liability on that capital gain and eliminate capital gain tax liability on future earnings for the next decade? These benefits are now available to investors through the MN-OZA DREAM Fund investment vehicle created under the Opportunity Zone program.
While these tax advantages can offer immense after-tax returns for investors, how to access them may be less clear. This article offers a practical step-by-step guide to help investors identify their qualifying gains, and understand the considerations needed when investing in an Opportunity Fund.
An Opportunity Fund provides a powerful set of immediate and long-term capital gains protections that isn’t found in any other investment vehicle. Capital gains earned from several investments vehicles — such as stocks, bonds, real estate, and cryptocurrency — are eligible for tax-advantaged treatment an Opportunity Fund. However, there are rules governing how and when a gain can be rolled into an Opportunity Fund investment. These rules must be followed in order for investors to access the full set of tax advantages available.
What are the Tax Advantages of Opportunity Funds?
The Tax Cuts and Jobs Act of 2017 established the Opportunity Zone program to create an investment model designed to stimulate private investment in the development of identified economically distressed areas known as Opportunity Zones, which comprise 128 census tracts throughout Minnesota.
In exchange for investing in Opportunity Zones through an Opportunity Fund, investors can access an exclusive set of capital gains tax incentives designed to reduce tax burdens and boost investors’ after-tax return potential:
- Capital gains tax deferral until 2027: By investing your capital gain in an Opportunity Fund, you can defer tax payment on that gain until as late as 2027. In order to access this tax incentive, the gain must be invested in an Opportunity Fund through December 31, 2026. If it’s sold before then, the gain becomes taxable in the year that the Opportunity Fund investment is sold. By deferring capital gains tax payments, an investor is able to invest more of their capital gain up to several years longer to boost earning potential in a way that wouldn’t have been possible had they been liable to pay capital gain taxes the year that the gain was realized.
- Capital gains tax liability reduction by up to 15%: If you hold an Opportunity Fund investment for at least five years prior to the end of the deferral period (December 31, 2026), your tax liability on the capital gains invested in an Opportunity Fund can be reduced by 10% through a step-up in basis. If you hold that same investment for at least seven years prior to the end of the deferral period, you can reduce your tax liability by a total of 15%.
- Capital gains tax liability permanently eliminated: Investors who hold their Opportunity Fund investments for at least ten years can expect to zero capital gains tax liability on any appreciation earned from their Opportunity Fund investment.
These tax incentives make Opportunity Funds one of the most powerful investment vehicles available to investors to improve their tax treatment for several types of capital gains. And, they may be the single best option for investors to protect capital gain returns for the next decade or longer.
But, Opportunity Fund investments come with a timetable that investors must follow if they want to maximize the tax advantages available to them.
How to Roll Over a Capital Gain into an Opportunity Fund
Fortunately for investors, the Opportunity Zone program was designed to reduce red tape and encourage investment. There is no limit on the number of Opportunity Funds that can exist, which means that there’s no cap on the number of investors who can participate or the amount of money that can be invested through an Opportunity Fund.
Instead of operating through a tax credit system, which limits the number of investors who can participate and relies on annual allocations from Congress or a tax credit allocation authority, the Opportunity Zone program is governed by Internal Revenue Codes (IRC). IRC section 1400Z-1 governs Opportunity Zones and section 1400Z-2 governs Opportunity Funds.
Here are the steps to rolling over a capital gain into an Opportunity Fund under IRC section 1400Z-2:
1.) Identify gains that qualify for deferral.
Pursuant to Prop. Reg. §1.1400Z-2(a)-1(b)(2), a gain is considered eligible for deferral under section 1400Z-2 if it meets the following criteria:
- The gain is treated as capital gain for federal income tax purposes;
- It would be otherwise recognized before January 1, 2027, if not applying for deferral; and
- It does not arise from the sale or exchange with a related party.
In general, gains that are eligible to be treated as a capital gain for federal income tax purposes include short-term capital gains, long-term capital gains, section 1231 gains, and unrecaptured section 1250 gains. It’s worth noting that gains retain their character (short-term vs. long-term) for the entire duration of the deferral period.
The definition of a “related party” under section 1400Z-2(e)(2) includes the relationships defined under IRC section 267(b) or IRC section 707(b)(1) and requires a 50% threshold when evaluating vote or value.
2.) Invest the eligible capital gain into a Qualified Opportunity Fund (QOF) within 180 days of realization.
Pursuant to Prop. Reg. §1.1400Z-2(a)-1(b)(4), the 180-day window begins on the day in which the gain would have been recognized had it not been deferred under section 1400Z-2. If the gain was recognized by a partnership (or another pass-through vehicle), the deferral election may be made by either the partnership or the partner. Under §1.1400Z-2(a)-1(c)(2)(iii), if the election is made by the partner, the 180-day window may begin on either the last day of the partnership’s tax year or the date in which the partnership would have recognized the gain.
It’s important to note that it’s possible to make a deferral election under section 1400Z-2 even if the 180-day window straddles two tax years. For example, a capital gain realized on November 30, 2018, is eligible to be invested into a QOF until May 28, 2019. However, an investor would be required to extend their 2018 return beyond the standard April deadline in order to make the appropriate election on IRS Form 8949, as we discuss in the next step.
No intermediary is required to roll over a gain into an Opportunity Fund. An investor can invest their realized gain into an MN-OZA DREAM Fund.
3.) Indicate that you’ve rolled over your capital gain into a QOF when reporting income taxes to the Internal Revenue Service (IRS) through IRS Tax Form 8949.
As with other realized gains, eligible gains are required to be reported on an investor’s tax return using IRS Tax Form 8949. For example, a gain from the sale of stock would be reported on Form 8949 and Schedule D (1040) for individual taxpayers. The newly updated Form 8949 is then used to adjust the investor’s total gain to reflect the deferral election under section 1400Z-2. The QOF investment is included as a negative number in column (g), so that eligible deferred gains are not included in taxable income for the current tax year.
As noted above, capital gains eligible for deferral retain their character (i.e., short-term vs. long-term) and thus, need to be reported separately. Short-term capital gains are reported on Part I of Form 8949 and long-term capital gains are reported on Part II.
If an investor makes an investment in multiple QOFs, or makes multiple investments in the same QOF on different dates, each investment is required to be listed separately. Gains from different transactions invested on the same day into the same QOF may be grouped together.
As described above, IRS form 8949 needs to be filed in the year in which the gain would have been recognized. In the above example, Form 8949 would be included in the investor’s 2018 tax return, even though the QOF investment was made during 2019, because the eligible gain would have otherwise been realized in 2018.
4.) Pay deferred capital gains when they become due.
Deferred tax payments for eligible capital gains invested into a QOF will be due eventually, but that date can vary based on how long an Opportunity Fund investment is held. If a QOF investment is held through at least December 31, 2026, the gains will become taxable in the tax year of 2026, and tax payment will be due when an investor’s taxes are filled in 2027. Pursuant to section 1400Z-2(b)(1), if a QOF investment is sold prior to December 31, 2026, it will become taxable in the tax year that the gain is realized.
Tax treatment on the eligible gain rolled into a QOF depends on how long the gain had been invested in a QOF prior to December 31, 2026. As mentioned above, if the QOF investment is held for at least five years prior to December 31, 2026, tax liability on the gain can be reduced by 10% under section 1400Z-2(b)(2)(B)(iii). If it’s held for at least seven prior to December 31, 2026, tax liability on the gain can be reduced by a total of 15% pursuant to section 1400Z-2(b)(2)(B)(iv).
5.) Possibly permanently eliminate capital gains tax liability on any appreciation earned from your QOF investment.
Section 1400Z-2(c) provides that if an investor holds a QOF investment for a minimum of ten years, they can expect to owe zero capital gains taxes on any appreciation earned from that investment. If this threshold is met, the appreciation earned from this investment should qualify for permanent exclusion from federal capital gains taxes.
If an investor exits a QOF investment before the ten-year holding period threshold is met, the investor forfeits the benefit of capital gains tax elimination on their QOF investment, and that gain becomes taxable in the tax year that the gain is realized.
Choosing the Right Option for You
Thanks to the exclusive set of capital gains tax incentives available only under the Opportunity Zone program, Opportunity Funds offer great potential for long-term investors to earn significantly better returns than they would following a traditional investment path. Choosing the right long-term investments will be key in not only reducing tax liability now, but also potentially earning sizeable future capital gains with zero capital gains tax liability if held for at least ten years.
We believe that real estate, in particular, represents a unique opportunity for investors to preserve and build their wealth while also supporting revitalization projects in developing neighborhoods across Minnesota.
Can investors with a capital gain realized in 2018 rollover into an Opportunity Fund in 2019?
A: It depends.
Time restrictions governing when eligible gain items can be rolled over into a Qualified Opportunity Fund apply on a rolling basis, not on a tax year basis.
The key stipulation is that capital gains must be rolled into an Opportunity Fund within 180 days of the taxable disposition*.
In other words, if you realized a capital gain in 2018, but it occurred within the last 180 days, you should be eligible to roll that gain into an Opportunity Fund. Now, this may mean that you would need to extend your tax return, since Opportunity Fund investments must be denoted on an individual or entity’s tax return on Form 8949 to be eligible for tax benefits. That said — conducting a rollover should be an option available to you.
However, if your gain was realized more than 180 days ago, that gain is unfortunately no longer eligible for the set of tax incentives being offered through the Opportunity Zone program.
What does this mean for you?
If you have realized a capital gain through stocks, bonds, real estate, cryptocurrency, or another asset, you might be looking for a way to protect your earnings and reduce your tax liability this year, and an Opportunity Fund may be the most advantageous option now and over the long term. If your investment is eligible, you have the option to defer and reduce your tax bill now — and potentially earn tax-free growth on your new investment for the next decade.
We’ve laid out the Opportunity Fund rollover process to help investors better understand what to expect and how to maximize the tax advantages available to them.
If you find yourself with 2018 gains that no longer fall within the 180-day window, keep in mind that future gains should still be eligible for a rollover. In fact, some investors may even desire to divest assets for the precise purpose of locking in realized gains and rolling them over into this tax-efficient investment vehicle. If you’re considering a rollover, please don’t hesitate to reach out to us so we can apprise you of the fund’s capacity and, if possible, reserve space for you to accommodate your intended rollover.
Of course, the above advice is not personalized, and you should consult your tax and investment advisors for information specific to you.
*Except in the case of a partnership or other pass-through entity, which we discuss in the question below.
What guidance has the Treasury and IRS provided for Investors (October 2108)?
A: The Opportunity Zone program was created under the Tax Cuts and Jobs Act and went into effect on January 1, 2018. The proposed regulations, released on October 19, 2018, provide additional guidance for potential investors under new US Code section 1400Z-2, clarifying several key issues which were not addressed in the Tax Cuts and Jobs Act. In this article, we discuss the most consequential elements of the guidance that was released and how it will impact both Opportunity Zone investors and potential Opportunity Zone investments.
Types of Capital Gains that Qualify for Investment
The initial legislation broadly stated that capital gains qualify for the tax incentives offered under the Opportunity Zone program. The proposed regulations specify that in order to be eligible for tax deferral, the gain must be treated as capital gain for federal income tax purposes. For investors, this means that short-term and long-term capital gains, unrecaptured section 1250 gains, as well as section 1231 gains are eligible for tax deferral. However, section 1245 and recaptured section 1250 gains are not eligible because they are not capital in nature. It’s worth noting that even though short-term capital gains are considered to be eligible for investment in an Opportunity Fund, they still maintain their ordinary income character, and therefore will be taxed at ordinary income rates when ultimately recognized.
In addition to the criteria above, the proposed regulations also exclude capital gains arising between related parties as eligible for deferral.
Tax Forms Required for Individual Investors
Initial legislation stated that eligible capital gains must be invested into a Qualified Opportunity Fund (QOF) within 180 days of recognition of the gain. The proposed regulations provided only slight clarification on investor reporting requirements, stating that it is anticipated that investors will report their investment in a QOF to the Internal Revenue Service (IRS) using Tax Form 8949 – a form used for reporting sales and other dispositions of capital assets. To accommodate the introduction of the Opportunity Fund tax incentives, an updated form and instructions are expected to be released imminently. We believe that the updated form will likely include fields for QOF investors to indicate the amount of their realized gain rolled into a QOF, the date in which the investment was placed into the QOF, and the name of the QOF.
Which Taxpayers Can Make an Investment and When
For capital gains that arise in the context of a partnership (or any other pass-through entity), the proposed regulations allow for the investment of gains into a QOF to be made either at the individual partner level or at the partnership level. For gain tax deferral made at the partnership level, the 180-day period begins on the date in which the gain was recognized. In the event that a deferral election is not made at the partnership level but rather by the individual partner, the partner may elect to begin the 180-day period either on the date in which the gain was recognized by the partnership or on the last day of the partnership’s taxable year. This flexibility is crucial for partners, because their ability to make a deferral election no longer hinges on immediate communication from the partnership in which they are invested.
Definitions of Reasonable Working Capital
Section 1400Z-2(d)(1) requires a Qualified Opportunity Fund to hold at least 90% of its assets in Qualified Opportunity Zone property (QOZ property). This 90% test calculation is determined by the average of the percentage of QOZ property held in the fund as measured (A) on the last day of the first six-month period of the taxable year of the fund, and (B) on the last day of the taxable year of the fund. The proposed regulations allow for working capital to be included as QOZ property for the purposes of the 90% test, but, the amounts must be designated for the acquisition, construction, or substantial improvement of tangible property in an opportunity zone. The QOF must have a written plan detailing what the working capital is earmarked for, and it also must spend the working capital funds within 31 months of receipt. The working capital safe-harbor is a critical clarification, as it provides a clear path for QOFs to substantially improve properties without failing the 90% test.
Land Exclusion for Substantial Improvement Test
In order to be considered QOZ property, the original use of such property must commence with the QOF, or the QOF must substantially improve the property. “Substantial improvement” requires that improvements to the property must exceed an amount equal to the adjusted basis of the property during the 30-month period beginning after the date of acquisition. The proposed regulations narrow the scope to encompass only the adjusted basis of buildings preexisting on the property. They also state that the QOF is not required to separately substantially improve the land upon which a building is located.
This clarification is crucial for any real estate renovations in major cities, such as Los Angeles and New York City, where land is an expensive and large share of the cost of development.
Opportunity Fund Certification and Reporting
A QOF is required to provide self-certification to the IRS stating that they meet the statutory requirements for the beneficial tax treatment; no prior approval or actions by the IRS is required. This certification will be made on the new IRS Form 8996, which will be attached to the QOF’s annual tax return. The form requires a QOF to indicate that they are organized for the purpose of investing in QOZ property, and includes the information necessary to calculate the 90% test and any penalty for non-compliance.
Tax-free Gain on Opportunity Zone Investments
One of the fundamentals of the Opportunity Zone program is that if an investor holds their Opportunity Fund investment at least ten years, they are exempt from taxes on any appreciation from their original Opportunity Fund investment. The original statute provided for the expiration of Opportunity Zones 2028, which left many wondering if appreciation on their investment may only grow tax-free for ten years. The IRS clarified in these proposed regulations that appreciation on an Opportunity Zone investment may grow tax-free until December 31, 2047.
The Department of the Treasury (Treasury Department) and IRS have requested the submission of comments on the proposed regulations, and will hold a public hearing on January 10, 2019, after which the IRS may proceed to finalize the regulations. In the meantime, until regulations are finalized, the IRS has stated that much the proposed guidance can be relied upon in draft form.
The Treasury Department and IRS are also working on providing additional guidance, including the release of more proposed regulations, which are expected to be published in the near future. These additional proposed regulations are expected to address topics not covered in the current proposed regulations, including further definitions of “substantially all” and delineation the “original use” requirement.
While some unanswered questions still remain, these proposed regulations provide much-needed and long-awaited guidance for investors and Qualified Opportunity Funds on the most critical topics. The new proposed regulations allow many investors that previously felt sidelined by uncertainty to begin seriously analyzing the tax benefits of Opportunity Zones.
What guidance has the Treasury and IRS provided for Investors (April 2019)?
A: Our accountants at WIPFLi have neatly summarized the most recent guidance
Opportunity Zone Regulations: Summarizing the Key Updates
In a long-awaited act, the Treasury has released its second set of proposed opportunity zone regulations. While opportunity zones have gotten a lot of attention for their exciting potential benefits, the lack of substantive guidance has prevented many investors and developers from fully moving forward. However, these proposed regulations answer many lingering questions and provide greater clarity. Below we summarize what you need to know about the key updates.
Because the facts and circumstances of every investor are different, the summary below should not be considered legal or tax advice and should not be solely relied upon in making decisions on opportunity zone properties, businesses and funds. Please seek out our assistance directly before moving forward with any opportunity zone investments.
Be on the lookout for additional guidance and commentary regarding the second tranche of proposed regulations from Wipfli over the next several weeks.
Just now hearing about opportunity zones? We previously covered opportunity zones basics — from what they are to how they enable tax benefits to what qualifies as a Qualified Opportunity Fund (QOF).
Summary of the Key Updates to the Proposed Opportunity Zone Regulations
Exit Strategy — A taxpayer that is the holder of a qualifying QOF partnership interest or S corporation stock may elect to exclude from gross income the capital gain from the disposition of qualified opportunity zone property reported on Schedule K-1 of such entity, provided the disposition occurs after the taxpayer’s 10-year holding period.
Debt-Financed Distributions — The proposed regulations include an example with a debt-financed distribution and indicates it should be allowable as long as the distribution does not exceed the investor’s basis in the QOF.
Carried Interest — The proposed regulations clarified that an investment into a QOF may be made with cash or property, but an interest received in exchange for services would not qualify for the QOF tax benefits. A service provider’s interest will be able to be tracked between its interest in capital gains invested and the performance of services.
§1231 Gains — Because the capital gain income from §1231 property is determinable only as of the last day of the taxable year, these proposed regulations stipulate that the 180-day period allowing you to invest such capital gain income from §1231 property in a QOF begins on the last day of the taxable year.
Leased Property — The lease must have been entered after December 31, 2017, and be a “market rate” lease to be considered qualified opportunity zone business property. There is no original use or substantial improvement requirement for leased property. When the lessor and lessee are related, there may be further restrictions. There is also further guidance on how to value a lease for asset test purposes and when there are prepayments.
Substantial Improvement Asset by Asset — The proposed regulations indicate substantial improvements must be made on an asset-by-asset basis in order to be Qualified Opportunity Zone Business Property (QOZBP).
Tangible Property & Original Use Definition — Original use of the tangible property begins on the placed in-service date for purposes of depreciation or amortization. If the tangible property was previously depreciated or amortized within the Qualified Opportunity Zone (QOZ), then it needs to be substantially improved to be considered QOZBP.
Vacant Property — If property has been unused or vacant for an uninterrupted period of at least five years, original use in the zone commences on the date after that period when any person first uses or places the property in service in the QOZ.
Triple Net Leases — Merely entering into a triple net lease with respect to real property owned by a taxpayer is not the active conduct of a trade or business by such taxpayer for QOZ purposes.
Property Adjacent to a QOZ — If the amount of real property based on square footage located within the QOZ is substantial as compared to the amount of real property based on square footage outside of the QOZ, and the real property outside of the QOZ is contiguous to part or all of the real property located inside the QOZ, then all of the property is deemed to be located within a QOZ.
50% Gross Income Test Clarified — The proposed regulations set forth three safe-harbors to meet the 50% of its total gross income in the opportunity zone requirement. The QOF must meet one of the three safe-harbors.
- Safe harbor #1: 50% of the services performed for the business by its employees and independent contractors (and employees of independent contractors) are performed in the QOZ, based on amounts paid for the services performed.
- Safe harbor #2: 50% of the services performed (based on hours) for such business by its employees and independent contractors (and employees of independent contractors) are performed within the QOZ.
- Safe harbor #3: 50% of the gross income requirement is met if (1) the tangible property of the business that is in a QOZ and (2) the management or operational functions performed for the business in the QOZ are each necessary to generate 50% of the gross income of the trade or business.
Working Capital Safe Harbor — The working capital safe harbor for a written plan now includes the development of a trade or business in the QOZ as well as acquisition, construction and/or substantial improvement of tangible property.
31-Month Working Capital Safe Harbor Exceptions — Exceeding the 31-month period does not violate the safe harbor if the delay is attributable to waiting for government action, the application for which is completed during the 31-month period.
Events Triggering Gain Inclusion — The IRS set out several different events that would require inclusion of gain, including gifts, donations and transfers of interest. However, transfers due to death will not trigger gain if the interest is transferred appropriately.
With this new, additional guidance, now is a great time to move forward. The Treasury released these proposed regulations to help people pursue QOZ opportunities. While there is a 60-day commentary period and more changes may be coming, the foundation is finally settling.
At Wipfli, we’re committed to educating clients about opportunity zones and helping them start seeing the benefits. We assist clients and prospects determining if their investment qualifies under the opportunity zone rules, structuring their QOF appropriately, working through the complexities of their specific situation, as well as providing general tax, attestation, accounting and other services. Contact us to get started.
Is the MN-OZA DREAM Fund a single-asset fund or multi-asset fund?
A: Multi-asset fund. At full capital size, we anticipate the Fund holding perhaps 8 to 15 projects.
Can I decide what project to invest in?
A: No, the Fund Manager makes the decisions about what projects to invest in and major operating decisions during the holding period. Investors are so-called “limited partners” and are not liable for the risks of making these decisions and generally are not experienced in real estate investing and management. Investors need not have any experience in real estate investments to participate in the Fund.
Can I sell my interest at any time?
A: No. The fund is an illiquid, non-registered and non-traded investment vehicle. Please consult your legal, tax and financial advisors to discuss if an investment in the MN-OZA DREAM Fund is appropriate for your financial plan and long-term investment strategy.
Why are investments in Minnesota attractive as compared to looking across the entire United States?
A: We believe Minnesota is an attractive and relatively lower risk market to invest in as compared to many coastal states, for example. Minnesota enjoys a diversified economy, highly educated workforce, a high quality of life and a growing economy. We believe these conditions will support attractive real estate investments by the Fund.
We also feel that the social impact objectives of the Fund are aligned with the social and political environment in Minnesota and many of its communities. Our approach to authentic community engagement is unique as compared to many other fund managers and we anticipate this will provide our fund investors benefits over time. These benefits may include financial assistance at the project level and favorable project permitting and processing.