Tucked into the sprawling 2017 tax law was a provision for the creation of “Opportunity Zones” that offer investor tax incentives intended to draw long-term investment to struggling areas of the country. While not specifically designed for community capital and everyday investors, Brian Beckon of Cutting Edge Capital lays out three ways to create opportunity funds that are open to all members of a community.
Since 2015, a bipartisan coalition of lawmakers has advocated for tax incentives for those who invest in low-income communities, recognizing that the benefits from the economic recovery have largely bypassed those communities. Their efforts were rewarded when their proposed opportunity zone program was included as Subchapter Z of the 2017 tax law overhaul that was passed in December. While Subchapter Z wasn’t specifically tailored to community capital, it offers tax incentives that will apply to some kinds of community investment funds.
First, here’s how the new law works: A taxpayer with capital gains can defer capital gains tax if they sell their appreciated assets and, within six months, roll over the proceeds into a “qualified opportunity fund.”
But it gets better. Investors in the qualified opportunity fund who hold their investment for at least 5 years will have their basis bumped up by 10% of the deferred gain (thus reducing their capital gains tax), and by another 5% if they hold it for 7 years. But if they hold their investment for 10 years, their basis is bumped up to the market value of their investment, which means their capital gains tax is eliminated completely.
A qualified opportunity fund is a partnership or corporation with at least 90% of its assets consisting of qualified opportunity zone property (and acquired after 12/31/2017), which can include:
• Equity interests in a corporation or partnership that is an opportunity zone business (and issued directly by the corporation or partnership, not acquired in secondary sales); or
• Tangible property (real or personal) located in the opportunity zone that is either first used by the fund or is substantially improved by the fund (the latter meaning that additions to its basis exceed its original basis).
A business is an opportunity zone business if:
• Substantially all of its tangible property is located in the opportunity zone;
• At least 50% of its gross income is derived from operations in the opportunity zone;
• A substantial portion of its intangible property is used in its operations in the opportunity zone; and
• Securities comprise less than 5% of its total assets by tax basis.
While this new law provides tax incentives to invest in funds that serve low-income communities, it does not provide any new strategies under the securities laws. It is probably inevitable that the vast majority of qualified opportunity funds will be open to accredited investors only, like nearly all private funds.
However, there are at least three strategies that allow a qualified opportunity fund to be open to its entire community, including non-accredited investors:
1. Real estate fund: A fund whose primary business is investing in real estate and 90% of whose assets consist of real estate in an opportunity zone will be a qualified opportunity fund and will be exempt from the burdensome regulations of the Investment Company Act of 1940 (the “1940 Act”), which paves the way for the fund to raise capital via a direct public offering – making it a true community investment fund.
2. Small business holding company: This type of fund is exempt from the 1940 Act if most of its assets comprise controlled or majority-owned subsidiaries – the idea being that the fund is in whatever business its subsidiaries are in, rather than in the securities investment business. Again, if 90% of its holdings are businesses in opportunity zones, it will also be a qualified opportunity fund.
3. Intrastate fund: A closed-end fund of up to $10 million, all of whose investors reside in the same state, is eligible to seek an exemptive order from the SEC that allows it to raise community capital via a direct public offering and while avoiding all or most of the 1940 Act’s regulations. Such a fund could invest in either business or real estate in opportunity zones and thereby also become a qualified opportunity fund.
With any of these strategies, a community-scale fund can open up the opportunity for community ownership of community assets, with everyone able to participate on a level playing field, and everyone able to reap the profits from local ventures.
It should be noted that governors of each state have until late March to designate low-income census tracts as opportunity zones. However, only 25% of the low-income communities in each state may actually be designated as opportunity zones. It remains to be seen which communities will actually win that designation.
But community investment funds can be offered to the public in any community anywhere in the U.S. At Cutting Edge Capital we believe community investment funds are an effective way to significantly move the needle toward a more inclusive, democratic and decentralized economy.
If you would like to see this happen in your community, here are some steps you can take:
1. Look at this map, which shows the census tracts that may be eligible for designation as an opportunity zone.
2. If your community includes eligible census tracts, write to your governor, asking him or her to designate those tracts in your community as an opportunity zone.
3. If you would like to see community investment funds serve your community, fill out Cutting Edge Capital’s intake form to make an appointment with us to explore the kinds of funds that can be offered in your community.