David Shapiro and Ronald R. Fieldstone of Saul Ewing Arnstein & Lehr. Courtesy photos

The Trump administration issued final opportunity zone regulations clarifying uncertainties and eligibility for the tax-break tool, which South Florida developers have called the "cherry on top" for their real estate projects.

Created by federal, bipartisan legislation, opportunity zones aim to breathe life in distressed areas by giving tax deferrals and breaks to investors who put their capital gains toward a business or project in an opportunity zone.

The Tax Cuts and Jobs Act in 2017 created opportunity zones, and the Treasury Department and Internal Revenue Service last April issued tentative regulations.

After a comment period and a July 9 public hearing, the Treasury and IRS on Dec. 19 issued 554 pages of final opportunity zone regulations.

"A lot of the changes that we are going to be dealing with are fairly technical things but very sweeping," said attorney David Shapiro, an opportunity zone expert. "Some are clarifications of things that everyone though should be the case but weren't really clear in the rules."

While opportunity zones sound like a simple give and take—an investor puts his capital gains in an opportunity zone in exchange for tax breaks—it's a complex tool with a lot of hurdles investors and developers have to meet for their OZ venture to qualify.

The final regulations make it easier to meet the technical hurdles, said Shapiro, partner at Saul Ewing Arnstein & Lehr in Philadelphia.

Investors put their money in qualified opportunity zone funds, which can either build new projects in opportunity zones or acquire existing property with plans for substantial improvements. Under the new regulations, investments that come with a 30-month improvement plan qualify even before the renovation has been completed.

"Let's say you acquire a piece of property, and it needs a bunch of improvements. If the cash is going to be spent in the working capital 30-month horizon, then the property counts as good from day one, even if it hasn't met the substantial improvement threshold, as long as you expect to make the substantial improvements in 30 months," Shapiro said. "That's a pretty significant change that's going to make it a lot easier for deals to qualify as good."

Ronald Fieldstone, another Saul Ewing partner and OZ expert, added investors would get the tax break benefit only as long as they follow through with their spending plan.

"You don't do a bogus plan because you want to spend the money. You don't do a plan to spend money to meet your test, if you don't plan to substantially comply with it," said Fieldstone, who is based in Miami. "There's a regulatory checkpoint."

The final rules were good news for investors and developers on another front. The regulations in a way lower the threshold as to what qualifies as an OZ property investment. Previously, it was thought all investments had to be structural, but now it's clear investments in things such as furniture also qualify.

"One big one from a developer perspective is when you are testing whether you are substantially improving a property or building, there was a concern that everything had to be capitalized into the building," Shapiro said. "The new regulations say that anything intrinsic to the function of that specific building can be included. The furniture in the hotel counts as good. Heating, ventilation and air conditioning."

Also, if a portfolio of buildings is purchased in an OZ, but only some of the buildings need improvements because the rest are in good condition, then this still would qualify under the new rules. An investor can aggregate the improvement value across the portfolio for the purposes of qualifying his investment.

The regulations might not necessarily be perfect, but at least they are final, leaving no questions and uncertainties for investors, Fieldstone said.

"From an investor's standpoint, there is much more comfort because you are not guessing. From the developer's point of view it's also better because there's less uncertainty in investing," he said. "The whole industry has been waiting for the regulations to be final."

OZs 101

Under the OZ legislation, investors can defer paying taxes on their capital gains from any venture they sold. A five-year investment means 10% of the capital gains won't be taxed, and a seven-year investment means 15% of the gains won't be taxed, although a Dec. 31 deadline for the latter tax break is looming.

The final date to end a qualified opportunity zone fund is Dec. 31, 2026. This means the deadline to invest for seven years to get a 15% tax break is the end of this year.

Investors separately also can get a tax break on the appreciation of their OZ investments as long as they keep their funds in for 10 years.

Treasury Secretary Steven Mnuchin in a statement issued last week touted OZs as a boon for communities and added the final regulatory clarifications will prompt more investment.

"Opportunity Zones are helping to revitalize communities and create jobs for hardworking Americans," Mnuchin said. "These regulations provide clarity and certainty for investors, which will enhance the flow of capital to new and expanding businesses, and create sustained economic growth in communities that have been left behind."

South Florida

In South Florida, developers generally can structure OZ investment in different ways. Some have created a qualified opportunity zone fund specifically for their own project and also put in their own capital gains in the fund. Others are betting on investment coming in from others' qualified OZ funds.

In Florida, the state government designated 427 opportunity zones, with 67 of them in Miami-Dade County, 30 in Broward County and 25 in Palm Beach County.

Some of the projects rising in OZs here are a nine-story, floor-to-ceiling glass retail showroom in Miami's Design District, an 18-story Soleste Grand Central apartment tower in Miami's Overtown and Delray Beach's Midtown Delray office and retail project likely to be rechristened to The Village.

But these projects being in OZs didn't dictate developer's decisions to build at these locations. Developers maintain that a real estate deal has to make sense and be lucrative before they even look at whether it's in an OZ and for potential tax breaks.

One attorney who represents real estate clients echoed this. He previously told the Daily Business Review that his clients don't set out to look for OZ sites but consider it a bonus.

"If it was a really good deal to begin with, they are going to pursue it, and the opportunity zone will be the cherry on top," said Philip Rosen, a Becker shareholder.