Trey Jackson – Page 75 – The Real Estate Roundtable

ECONOMIC GROWTH – TRAVEL & TOURISM

Posted on December 7, 2018October 27, 2023 by Trey Jackson

Treasury Proposes Detailed Rules for New Restrictions on Deducting Business Interest

Posted on December 1, 2018October 27, 2023 by Trey Jackson

On Tuesday, the Treasury Department released proposed regulations governing the new limitation on the deductibility of business interest expense, including the exception for real estate businesses.

Under the Tax Cuts and Jobs Act (TCJA), businesses generally can no longer deduct their interest expense to the extent it exceeds 30 percent of their annual earnings before interest, tax, depreciation and amortization (EBITDA). Business interest deductibility was a key issue in Real Estate Roundtable President & CEO Jeffrey DeBoer’s testimony before the Senate Finance Committee shortly before consideration of the tax bill. (Roundtable Statement for the Record, Sept. 19, 2017)
DeBoer testified that the proposal could have severe unintended consequences. Noting that the cost of debt is a necessary expense that must be accounted for when measuring income, he testified that our capital markets are the envy of the world and that responsible, appropriate leverage helps entrepreneurs and contributes to economic growth and job creation. (Roundtable Weekly, Sept. 29 and testimony video clips)
The final bill included a critical exception from the interest limit for an electing real property trade or business. An electing real property trade or business is defined broadly to cover: any real property development, redevelopment, construction, reconstruction, acquisition, conversion, rental, operation, management, leasing, or brokerage trade or business.

In February, the Roundtable submitted comments to Treasury with recommendations for how the real estate exception should work in the case of tiered business structures, and in the case of businesses that involve both real estate and non-real estate activities. (Roundtable Weekly, Feb. 23, 2018)

Business interest deductibility was a key issue in Real Estate Roundtable President & CEO Jeffrey DeBoer’s testimony before the Senate Finance Committee shortly before consideration of the tax bill. (Roundtable Statement for the Record, Sept. 19, 2017 and video clips ).

The proposed regulations are largely favorable. Most importantly, the regulations clarify that partner-level borrowing qualifies for the real estate exception. Thus, at the election of the taxpayer, the real estate exception can extend to debt that is incurred by a partner to acquire an interest in a partnership that is engaged in a real property trade or business. In addition, the regulations confirm the broad definition of a real property trade or business. The regulations also clarify that capitalized interest, which commonly arises during the development of real estate, is not subject to the interest limit.
With respect to taxpayers engaged in both real estate and non-real estate activities, the proposed regulations generally would allocate and apportion debt based on the relative amount of the taxpayer’s adjusted basis in assets used in those activities. However, taxpayers would directly trace and allocate qualified nonrecourse indebtedness to the asset securing the loan (with no apportionment). This latter rule should result in the allocation of a larger share of debt to assets qualifying for the real estate exception.
Some concerns remain. Notably, the attribution rule that allows partners to qualify for the real estate exception based on partnership-level activities does not extend broadly to all upper-tier borrowing for investment in lower-tier real estate businesses. Thus, except in limited circumstances, debt incurred by a taxpayer to invest in a corporation (or REIT) that is engaged in a real property trade or business is not eligible for the real estate exception.

The Roundtable’s Tax Policy Advisory Committee is continuing to review the 439-page regulatory package to understand its full implications for the financing of U.S. real estate. Comments on the proposed regulations will be due 60 days after their publication in the Federal Register.

Roundtable Comments Support Proposed Implementation Rule for High Volatility Commercial Real Estate Loans

Posted on November 30, 2018October 27, 2023 by Trey Jackson

The Real Estate Roundtable’s support for a federal proposal that would implement modified capital rules for High Volatility Commercial Real Estate (HVCRE) loan exposures is detailed in a Nov. 26 comment letter to three banking agencies. The Agencies — tasked with developing a rule consistent with Section 214 of the Economic Growth, Regulatory Relief, and Consumer Protection Act (S. 2155) to clarify the capital treatment of HVCRE Acquisition, Development, or Construction (ADC) loans — invited comments on their Notice of Proposed Rulemaking. (Roundtable Weekly, May 25)

The Roundtable’s comment letter to the Office of the Comptroller of the Currency; the Board of Governors of the Federal Reserve System; and the Federal Deposit Insurance Corporation states the current implementation proposal “more realistically aligns the requirements for HVCRE loans on commercial real estate projects with the actual periods of development or construction risk.” The letter also notes that when the final proposal is implemented, it “will aid economic growth and job creation, while maintaining adequate capital levels to manage the risks associated with ADC lending.” (Roundtable Comment Letter, Nov. 26)
The changes to the capital rules address key deficiencies in the agencies’ prior regulations governing the criteria for HVCRE or HVADC loans by providing the following modifications and clarifications:

The 15% equity requirement would be revised to expressly include contributed land/property at the appreciated land value as determined by a FIRREA appraisal and bank review (versus the cost basis under the current rule).
Clarifies that loans made to acquire existing property with rental income and/or do cosmetic upgrades and other improvements don’t trigger the capital penalty.
A new exemption would be added to the HVCRE rule covering acquisition/refinancing loans for performing income producing properties.
Allows borrowers to use internally generated capital in the project and, once the development/construction risk period has passed, outside the project, rather than forcing them to refinance the loan (possibly away from the original lender).
All ADC loans made prior to January 2015 would be grandfathered and do not have to satisfy current HVCRE exemption criteria.
Banks would able to withdraw HVCRE status prior to the end of an ADC loan’s term.

Roundtable President and CEO Jeffrey DeBoer also suggests in the letter that periodic industry forums be held on the implementation of the capital rules. “This feedback would allow the Agencies to appropriately address any possible unintended economic consequences resulting from the regulation by supervisory personnel or by the institutions they supervise that might threaten the soundness of the banking system or the stability of the real estate lending market,” DeBoer added.
The Roundtable’s letter is supported by The American College of Real Estate Lawyers (ACREL) and The American College of Mortgage Attorneys (ACMA). (Joint Letter of Support, Nov. 27)

The Agencies’ HVCRE proposal was one of the issues discussed at this week’s meeting of The Roundtable’s Real Estate Capital Advisory Committee (RECPAC). Since 2015, The Roundtable’s HVCRE Working Group and industry coalition partners have played a key role in advancing specific reforms to the HVCRE Rule. (Roundtable HVCRE Comment Letter, March 2).

Roundtable Submits Recommendations to Improve ENERGY STAR Scoring Models; EPA Seeks Additional Feedback from Building Owners

Posted on November 26, 2018October 27, 2023 by Trey Jackson

The Real Estate Roundtable on Nov. 26 sent recommendations to the U.S. Environmental Protection Agency (EPA) to improve the agency’s ENERGY STAR scoring methods, which rate a building’s energy efficiency performance. (Roundtable Letter and Recommendations)

Nearly 35,000 buildings and plants – representing more than 5 billion square feet of commercial space – have earned EPA’s ENERGY STAR. Pension funds and other institutional investors frequently rely on the label as a market signal for well-managed assets with smaller carbon footprints. Business tenants also seek to locate in ENERGY STAR-certified buildings to lower their utility expenses.

Last August, EPA announced the first updates to its ENERGY STAR scoring models in over a decade. Initial analyses by The Roundtable’s Sustainability Policy Advisory Committee (SPAC) and other stakeholders indicated that EPA’s new models produced arbitrary scoring results. Offices over 500,000 square feet in size, and buildings located in colder climates requiring more heating throughout the year, appear to have sustained the most significant ENERGY STAR score declines.

EPA thereafter suspended certifications for office, warehouse and other property types and opened a “study period” in September to assess its scoring models. (Roundtable Weekly, Sept. 14)

Roundtable President and CEO Jeffrey DeBoer in October told the Wall Street Journal, “Revisions to ENERGY STAR are much needed and very important. However, to be truly effective the data sources and projections relied upon in the revision must be transparent and reflect industry leading practices.” (Wall Street Journal, Oct. 9)

The Roundtable’s Nov. 26 summary and recommended changes to EPA’s scoring methods seek to ensure a level-playing field for the ENERGY STAR label – so that buildings of all sizes located in varying climate zones across the country are rated fairly.

EPA has requested additional data from owners and managers to test its methods on specific buildings and portfolios. Stakeholders interested in working with the agency to assess how particular properties have fared since new ENERGY STAR scores were released last August should consult EPA’s website, “How to Respond to Data Requests in Portfolio Manager.”

EPA plans to wrap-up its review period and resume issuing ENERGY STAR building labels by next spring.

Virginia Plans to Advance Internet Sales Tax Legislation as Opponents Aim to Roll Back Supreme Court’s Wayfair Decision

Posted on November 9, 2018October 27, 2023 by Trey Jackson

The Supreme Court’s recent South Dakota v. Wayfair decision allowing States to collect tax owed on remote internet sales purchases could generate an estimated $250 million in annual revenue for the state of Virginia, which is aiming to start its online sales tax program this summer.

The Real Estate Roundtable and seven other national trade organizations wrote to congressional leaders on Sept. 17, 2018 opposing any legislation that reverses or limits the Supreme Court’s June 22 decision in South Dakota v. Wayfair, which allows States to collect tax owed on remote internet sales purchases.

Many states are seeking to expand their tax authority over online sales in the wake of the Supreme Court’s June 21 South Dakota v. Wayfair decision. The 5-4 Wayfair ruling strongly suggests that South Dakota’s law requiring remote sellers to collect sales tax on more than $100,000 of in-state sales or 200 transactions complies with constitutional law.
Virginia Finance Secretary Aubrey L. Layne Jr. recently told Bloomberg Tax that a state bill in next year’s Virginia legislative session would align with principles supported in the high court’s Wayfair decision. Layne said details of the bill may be unveiled in December and added, “My guess is it probably won’t be effective until July.” (BNA, Oct. 30)
Despite the Wayfair ruling, a bipartisan quartet of House members led by Rep. Jim Sensenbrenner (R-WI) introduced legislation on Sept. 13 that would prohibit states from requiring remote sellers with less than $10 million in national annual sales from collecting and remitting sales and use taxes – pending a compact approved by Congress. In addition to Sensenbrenner’s Online Sales Simplicity and Small Business Relief Act of 2018 (H.R. 6824), other bills in Congress would go even further in reversing the Wayfair decision. (Tax Notes, Nov. 7)
Opponents of the decision are asking Congress to include restrictions on States in an end-of-year bill. (Bloomberg, Oct. 24). However, legislation to roll back Wayfair is unlikely. Any major legislation must be negotiated by leaders of both parties, who have limited time during a Lame Duck session. Congressional negotiators are expected instead to focus on a handful of “must pass” bills.
The Real Estate Roundtable and seven other national trade organizations wrote to congressional leaders on Sept. 17 opposing legislation that reverses or limits Wayfair. (Wayfair Comment Letter, Sept. 17)

The business coalition letter explains that for more than a decade, industry groups “have undertaken significant efforts to establish economic parity between online and brick-and-mortar sellers that would better reflect the changing dynamics of today’s omnichannel marketplace. For Congress to insert themselves post-ruling only creates additional uncertainty and further complicates the implementation process, while undermining the level playing field created by the Wayfair decision.” (Roundtable Weekly, Sept. 21)

The eight organizations conclude the letter by offering to work with Congress on any problems that may arise from state implementation of remote internet sales tax collection allowed by Wayfair. (Roundtable Weekly, June 22)

Guidance on Business Interest Deduction Limit May Address Real Estate Investment Issues

Posted on November 2, 2018October 27, 2023 by Trey Jackson

The Treasury Department and Internal Revenue Service are close to issuing draft regulations on the new business interest expense limitation, enacted in last year’s tax overhaul. Regulations related to the Tax Cuts and Jobs Act can be designated for an expedited, 10-day review by the White House Office of Management and Budget before publication and public release, though the timetable can be extended if needed.

A Feb. 21, 2018 Roundtable letterurged Treasury to clarify that interest (other than investment interest) on debt that is allocable to an owner of an entity engaged in a real property trade or business is exempt from the new business interest limitation rule – if that trade or business has elected out of the rule.

The Tax Cuts and Jobs Act capped the amount of interest that a business with revenue over $25 million can deduct annually – to no more than 30 percent of earnings before interest, taxes, depreciation, and amortization. The provision also includes an important exception for an “electing real property trade or business.”
This exception reflects policymakers’ understanding that limits on the deduction for interest expense could have enormous negative consequences for property values, real estate markets, and economic growth. (Reference: Real Estate Forum, Jan/Feb 2018, Decoding The New Tax Bill)
The Real Estate Roundtable on Feb. 21, 2018 wrote to Treasury Secretary Steven Mnuchin and offered a number of recommendations to resolve ambiguities in how the new limitation will apply. The Roundtable requested clarifications to ensure the exception operates as intended for common real estate ownership arrangements – focusing on the scope and application of the exception for an electing real property trade or business.
The letter urged Treasury to clarify that interest (other than investment interest) on debt that is allocable to an owner of an entity engaged in a real property trade or business is indeed exempt from the new business interest limitation rule – if that trade or business has elected out of the rule. As relevant examples, the letter describes four common scenarios where the financing of a real property trade or business occurs through a tiered structure. Clarifying the rules for real estate in the context of tiered arrangements will help avoid potential disruptions. (Roundtable comment letter, Feb. 21, 2018)
In April, Treasury and the IRS released Notice 2018-28 to provide interim guidance on the new limit until the proposed regulations are issued. For real estate investors, however, the Notice leaves unanswered some of the key issues related to the financing of real estate. (IRS, April 2 and Roundtable Weekly, April 6)
On Oct. 25, OMB’s Office of Information and Regulatory Affairs (OIRA) acknowledged receipt of the proposed section 163(j) rules from Treasury. After OIRA completes its review, the proposed guidance will be issued. A second set of regulations, focused specifically on pass-through entities, is expected in December.

The Roundtable’s Tax Policy Advisory Committee will continue to seek appropriate clarifications as Treasury moves forward with regulatory projects related to implementation of the Tax Cuts and Jobs Act.

President Trump Aims to Negotiate Infrastructure Plan With Democrats; Gateway Project Faces Federal-State Cost Share Issues

Posted on October 26, 2018October 27, 2023 by Trey Jackson

This week President Trump and key Democrats have spoken out about the possibility of a “grand bargain” infrastructure deal in the new Congress, if Democrats gain control of the House in the mid-term elections next month. (Politico, Oct. 22).

In February, the Trump Administration released its long-awaited Legislative Outline for Rebuilding Infrastructure in America.

In February, the Trump Administration released its long-awaited Legislative Outline for Rebuilding Infrastructure in America, proposing at least $1.5 trillion in new investment across infrastructure asset classes; incentivizing greater state and local funding; and shortening the project permitting process to two years. (Roundtable Weekly, February 17, 2018).
President Trump recently told Fox Business that his administration is aiming to slash the amount of time it takes to complete transportation projects and will focus on infrastructure legislation in the upcoming congressional Lame Duck session. “Infrastructure is going to be starting right after the midterms and we think that is going to be an easy one,” Trump said. (Fox Business, Oct. 17)
Despite both parties acknowledging the importance of infrastructure legislation, the fundamental issue of how to pay for projects remains – with many Republicans expected to balk at massive deficit spending to fund the package. ( Politico, Oct. 22)
Last week, New York Gov. Andrew Cuomo sent a video to President Trump, urging him to provide federal aid for the completion of the Gateway tunnel project that connects New York and New Jersey, and services a key rail link in the Northeast Corridor between Washington, D.C. and Boston. Both New York and New Jersey have already agreed to contribute half of the estimated $12.7 billion it will cost to repair and rebuild, and the states expect the federal government to contribute the remaining amount. (Curbed New York, Oct. 19) The Trump administration, however, has stated the federal commitment for Gateway should not exceed 20 percent. (POLITICO Magazine, July-August 2018).
In September 2017, The Roundtable submitted comments to the Federal Transit Administration (FTA), in response for public input on a proposed rule that would make “greater use of public-private partnerships (P3s) and private investment in public transportation capital projects.” The comments emphasize how real estate and infrastructure have a synergistic, two-way relationship, where growth in one asset class benefits the other. (Roundtable Weekly, Sept. 29, 2017)

Roundtable President and CEO Jeffrey D. DeBoer addressed the impact of these demographic trends, and their impact on real estate and the nation’s evolving infrastructure needs, in an interview on CNBC’s SquawkBox last June. (CNBC Squawkbox interview and Roundtable Weekly, June 9, 2017).

Another influence on the need for innovative transit-oriented infrastructure projects are societal trends. As Millennials dominate the work force and Baby Boomers retire from it, more public transportation options will be critical as profound changes are anticipated in car use and ownership. Innovations in driverless vehicles and ride-hailing services are accelerating a “transportation revolution” as household vehicle ownership is forecast to drop, massive numbers of parking spaces may become obsolete, and billions of square feet of transit-oriented real estate could be unlocked for development.
Roundtable President and CEO Jeffrey D. DeBoer addressed the impact of these demographic trends, and their impact on real estate and the nation’s evolving infrastructure needs, in an interview on CNBC’s SquawkBox last June. ( CNBC Squawkbox interview and Roundtable Weekly, June 9, 2017).
In January of this year to President Trump on infrastructure development, Roundtable President and CEO Jeffrey DeBoer commented on the positive economic benefits that infrastructure legislation would bring to the nation. “Modernizing our roads, tunnels, mass transit, drinking water, power grid, and telecommunications systems – in rural and urban areas alike – are vitally important to economic growth, productivity and America’s global competitiveness,” DeBoer said.

He added, “Real Estate Roundtable members are experienced in addressing the financing, permitting and government partnership issues that frequently slow or stop infrastructure projects. We intend to provide positive feedback and ideas to all policymakers working to facilitate improvements in our nation’s infrastructure.” (Roundtable Letter on Infrastructure Funding, Jan. 11)

Pipe-Bomb Mailings Draw Attention to Building Security, Terrorism Risk Insurance Program

Posted on October 26, 2018October 27, 2023 by Trey Jackson

In the wake of this this week’s national pipe-bomb mail campaign, the implications for building security and terrorism risk insurance are profiled in today’s The Real Deal. (Real Deal NY, Oct. 26)

Real Estate Roundtable Senior Vice President Chip Rodgers is quoted in the article, which reports how numerous building managers are ramping up security after multiple suspicious packages containing potential explosive devices were found mailed to high-profile Democrats throughout the country.
The Real Deal also reports that the Terrorism Risk Insurance Act (TRIA) helps building owners manage the risks associated with large-scale acts of terrorism.
Rodgers comments that although the small size of the devices discovered this week are not likely to trigger TRIA, the attempted attacks show how “terrorism continues to pose a clear and present danger to our nation, to American businesses and to real estate.”
With the Terrorism Risk Insurance Program Reauthorization Act of 2015 (TRIPRA) scheduled expiration date at the end of 2020, The Roundtable is advocating for the long-term reauthorization of the program.Rodgers also notes that “TRIA does not stop terrorist attacks, but it does undermine the goals of terrorists who seek to weaken or destroy our economy.” He adds other nations have permanent terrorism insurance programs because they “recognize that markets cannot underwrite this risk.”
“There is no homeland security without economic security,” Rodgers told The Real Deal.

The Roundtable’s Homeland Security Task Force (HSTF) and Risk Management Working Group (RMWG) met on Oct. 18 at the Federal Bureau of Investigation’s New York City office to discuss the threat landscape and real estate industry concerns. HSTF and RMWG will meet next on Nov. 13 at the FBI’s Washington, DC headquarters.

Real Estate Roundtable Perspective: Opportunity Zone Regulations Answer Critical Questions Regarding Real Estate Investment

Posted on October 26, 2018October 27, 2023 by Trey Jackson

Recent Proposed Treasury Regulations governing the new “Opportunity Zone” investment program – and its potential to spur productive real estate investment in struggling, low-income communities – is the focus of an Oct. 26 GlobeSt.com interview with Real Estate Roundtable President & CEO Jeffrey DeBoer and Roundtable SVP and Counsel Ryan McCormick.

In the interview, DeBoer and McCormick provide answers to critical questions regarding the highly anticipated regulatory guidance and its implications for the real estate industry.
DeBoer notes, “For real estate, the proposed regulations are unquestionably positive. They clarify key technical questions and open issues, and they should allow investments in funds and in underlying projects to go forward. While some important questions remain, we continue to believe that the Opportunity Zone program will be a powerful catalyst for transformational real estate investment in these designated low-income areas.”
The Treasury in June designated more than 8,700 low-income census tracts in the United States, Puerto Rico, and territories as qualified Opportunity Zones. (IRS Notice 2018-48 and Roundtable Weekly, June 22 and Interactive Map, Economic Innovation Group)
The Wall Street Journal reported this week that the highly-anticipated guidelines have offered investors greater certainty to begin the process of raising and investing billions of dollars into new real-estate funds targeting opportunity zones. (WSJ , Oct 23)
The GlobeSt Q&A also clarifies who can defer gain by investing in an Opportunity Fund; the 180-day time period when investors are required to roll capital gain into a Fund; and how the proposed rules allow a Fund to mobilize capital over a period of nearly three years.
McCormick explains in the article : “The proposed rule creates a ‘working capital safe harbor.’ Opportunity Funds have a minimum of 31 months to invest their working capital in qualified opportunity zone property. The longer runway aligns better with the practical realities of real estate investment.”
DeBoer also offers clarifications about the “original use” and “substantial improvement” tests of an Opportunity Zone property, noting that they “… are critical elements of the Opportunity Zone program, and they are clarified in important ways in the proposed rules. Keep in mind, Congress wanted to stimulate new capital investment, not simply the transfer of income-producing assets from one owner to another. Therefore, property must either be put to its original use by the fund, or the fund must substantially improve the property. The Opportunity Zone law defines substantial improvement as the doubling of the adjusted tax basis of the property. The regulations provide that the original use and substantial improvement requirements only relate to the structure and not the underlying land.”
Further clarification about the program is expected. According to DeBoer, “Some of the most important questions relate to Opportunity Fund transactions and the tax consequences when a fund buys, sells, and/or reinvests in Opportunity Zone property … Treasury and the White House have indicated that additional guidance is forthcoming before the end of the year. The Roundtable will be working with policymakers to ensure the next tranche of guidance and the final rules maximize productive, job-creating investment in Opportunity Zones.”

The Roundtable’s Tax Policy Advisory Committee (TPAC) recently convened a panel on Opportunity Zones that included the tax counsel for Senator Tim Scott (R-SC), the original author and sponsor of Opportunity Zone legislation. TPAC’s Opportunity Zone Working Group will continue to provide insight into how the industry can help the program fulfill its ambitious objective of stimulating economic development and job creation in low-income communities. (Roundtable Comment Letter, June 28 and Roundtable Weekly, July 20)

Treasury Releases Proposed Rules on Opportunity Zones Program

Posted on October 19, 2018October 27, 2023 by Trey Jackson

The Treasury Department today released Proposed Regulations giving investors added guidance regarding the new “Opportunity Zone” investment program. The Real Estate Roundtable’s Tax Policy Advisory Committee (TPAC) Opportunity Zone working group will analyze the much-anticipated regulatory proposal and their consequences for real estate-related jobs and investment. (IRS proposed rules, Oct. 19)

In late June, The Estate Roundtable provided formal comments to Treasury Department and IRS officials regarding implementation guidance that could maximize real estate investment, capital flows and jobs into newly designated Opportunity Zone communities. (Roundtable Weekly, June 29)

“Real estate development and redevelopment is a key component of any region’s economic strength and growth,” wrote Roundtable President and CEO Jeffrey DeBoer. “In our view, successful implementation of the Opportunity Zone program requires careful consideration of how the new rules will apply to real estate and real estate investment activities.”

Congress created Opportunity Zones in the 2017 Tax Cuts and Jobs Act to encourage long-term, capital investment in economically struggling, low-income communities. Opportunity Funds must invest in tangible business property located in a qualifying zone, which can include real estate, and the tax benefits are tied to the investment holding period. The capital gain on an Opportunity Fund investment is excluded from tax altogether if the asset is held for 10 years or more.

The Treasury in June designated more than 8,700 low-income census tracts in the United States, Puerto Rico, and territories as qualified Opportunity Zones. (IRS Notice 2018-48 and Roundtable Weekly, June 22)

Certain elements of the Proposed Regulations may be relied upon immediately, whereas others will take effect when final regulations are issued. Comments are due 60 days after the proposed guidelines are published in the Federal Register, and a hearing will be held on January 10, 2019.