Category: News

A Tax Foundation report released this week urges policymaker to correct a technical drafting error regarding cost recovery for qualified improvement property (QIP) that was included in the tax overhaul legislation enacted last year.  The unintentional drafting mistake has resulted in a longer cost recovery period for qualified nonresidential interior improvements – a category that previously covered leasehold improvements, retail improvements, and new restaurant construction.  (“Correcting the Drafting Error Involving the Expensing of Qualified Improvement Property” –  The Tax Foundation, May 30)

Chart from “  Correcting the Drafting Error Involving the Expensing of Qualified Improvement Property  ” – The Tax Foundation, May 30 – enlarge chart image.

 Key Points of the Tax Foundation Report:

• The Tax Cuts and Jobs Act (TCJA) stimulated investment by allowing businesses to immediately deduct the cost of certain assets and expenditures under a 100 percent bonus depreciation provision.  It also sought to consolidate the cost recovery period for nonresidential real estate improvements into a single, 15-year period for qualified improvements. 
• However, due to an unintended drafting mistake, the law accidentally excluded the 15-year reference, and qualified improvements defaulted to a 39-year recovery period.  As a result, investments of this type face a higher tax burden than under prior law.
• More restrictive cost recovery treatment for interior improvements to buildings will increase costs and discourage companies from making these types of investments.
• Policymakers should work to ensure that cost recovery for qualified improvement property (QIP) does not remain worse off due to a technical drafting error, and that it is eligible for 100 percent bonus depreciation.

Legislative vs. Regulatory Correction:

Treasury Secretary Steven Mnuchin

• During a February hearing in the House, Rep. Jim Renacci (R-OH) explained to Treasury Secretary Steven Mnuchin that Ways and Means members are working to address the  tax reform drafting mistake that should have provided for a 15-year recovery cost-recovery period to qualified property improvements, instead of the 39 year period that was enacted. 
• Mnuchin responded to Renacci: “I am aware of the error and it obviously was unintended. We are looking at whether there is anything we can do with regulations. I think it is likely that this is something that may need to be fixed in the bill. We look forward to working with you.” (Ways and Means Committee  –  Mnuchin’s testimony and hearing video ).
• The Real Estate Roundtable and its industry partners are working actively with key lawmakers to advance a legislative technical correction or obtain formal, clarifying guidance from the Treasury Department.

Along with TCJA rulemaking and implementation, potential technical corrections that impact CRE will be a focus of discussion at The Roundtable’s Annual Business Meeting and its Tax Policy Advisory Committee (TPAC) Meetings on June 14-15 in Washington, DC.

With millions of workforce and low-income Americans facing a lack of affordable housing, a group of nine bipartisan Senators recently introduced legislation that would create a task force focused on policy recommendations to address the nation’s housing scarcity problem.  (Sen. Heller News Release, July 18)

With millions of workforce and low-income Americans facing a lack of affordable housing, a group of nine bipartisan Senators recently introduced legislation that would create a task force focused on policy recommendations to address the nation’s housing scarcity problem.  (Sen. Heller News Release, July 18)

• The Task Force on the Impact of the Affordable Housing Crisis Act – introduced by Senators Dean Heller (R-NV), Todd Young (R-IN), Maria Cantwell (D-WA), Angus King (I-ME), Tim Kaine (D-VA), Doug Jones (D-AL), Cory Gardner (R-CO), Marco Rubio (R-FL), and Chris Coons (D-DE) – would create an 18-member Task Force with two co-chairs.  The affordable housing task force would evaluate and quantify the impact of housing costs on other government programs and provide recommendations to Congress on how to increase affordable housing.  (One-page Task Force Overview)  
• Sen. Heller commented, “While we welcome (an) explosion of growth and the jobs and economic opportunities that come with it, there is a lack of affordable housing because the demand for it is outpacing the supply. We need to develop solutions.” 
• Sen. Cantwell noted, “This year we were able to boost the Low Income Housing Tax Credit, which has built 90 percent of affordable housing in our country.  More needs to be done to get to the root causes of the affordable housing crisis and show that the LIHTC is cost-effective and creates jobs.” 
• Sen. Cantwell discussed the shortage of housing for workforce and low-income Americans with Roundtable President and CEO Jeffrey DeBoer last year during a Senate Finance Committee hearing on business tax reform. (Hearing Video Clip, Sept. 19, 2017)  
  

  Roundtable President and CEO Jeffrey DeBoer testified before the Senate Finance Committee: “And we need to focus on ways to incentivize affordable housing, not just low-income housing, which is obviously needed, but workforce housing as well … it is certainly a growing and troubling problem. And as we go forward, that part of our nation has to be included in whatever is done in economic growth.” (Hearing Video Clip, Sept. 19, 2017)

• In response to a question from Sen. Cantwell, DeBoer said, “Most businesspeople that operate certainly in urban areas recognize that there’s a tremendous and growing shortage of what we would call workforce housing. And so people that are middle-American citizens, firemen, teachers, what have you, combined incomes, working very, very hard, are being priced out of our nation’s cities.”  
• DeBoer continued, “And we need to focus on ways to incentivize affordable housing, not just low-income housing, which is obviously needed, but workforce housing as well … it is certainly a growing and troubling problem. And as we go forward, that part of our nation has to be included in whatever is done in economic growth.” (Hearing Video Clip, Sept. 19, 2017) 
• Housing in the nation’s economically distressed communities could also benefit from the new federal “Opportunity Zones” program, which seeks to encourage investment, economic development, and job creation in low-income areas.  Opportunity Zones are the focus of a July 16 GlobeSt.com  interview with Real Estate Roundtable President & CEO Jeffrey DeBoer and Roundtable SVP and Counsel Ryan McCormick.  With implementation guidance about the program expected soon from the U.S. Department of the Treasury, the article highlights major tax considerations and regulatory questions, which are also discussed in greater detail in a Roundtable June 28 Opportunity Zone comment letter.  (Roundtable Weekly, July 20).  Treasury rules are expected to confirm that Opportunity Zone tax benefits extend to the construction and rehabilitation of affordable housing.  

The Roundtable’s 2018 Policy Agenda, released in February, recognizes the affordable housing challenge – “As many of our nation’s urban areas become more expensive, our industry continues to recognize and support housing not only for lower income residents, but also for the nation’s middle income workforce. A stable, healthy commercial and residential real estate economy facilitated by sensible federal policies can continue to improve our national standard of living.”  (Introduction, 2018 Roundtable Policy Agenda)

The bipartisan Cyber Diplomacy Act (H.R. 3776) will advance America’s public and private efforts to safeguard cyberspace and enhance the nation’s economic competitiveness in a global digital economy.  That is the message sent by The Roundtable, U.S. Chamber of Commerce and five other national trade organizations in a joint letter last week to Senate Majority Leader Mitch McConnell (R-KY), Minority Leader Chuck Schumer (D-NY) and all other U.S. Senators. (Joint Letter, Sept. 26)

The  Roundtable and six other national trade organizations sent a Sept. 26 joint letter on cybersecurity policy to all members of the U.S. Senate. (Joint Letter)

• The bill – introduced by House Foreign Affairs Committee Chairman Ed Royce (R-CA) – passed the House in January, was reported out of the Senate Committee on Foreign Relations in June and is currently under consideration by the Senate.
• H.R. 3776 would task the State Department with establishing a unified Office for Cyberspace and Digital Economy, which would consolidate efforts relating to international cybersecurity, internet access, internet freedom, digital economy, cybercrime, deterrence, and international responses to cyber threats.  (The Washington Times, Sept. 27)
• The Sept. 26 joint letter states, “We believe that a focused, centralized, and appropriately placed office led by an ambassador-rank official would aid U.S. cybersecurity and digital economy efforts. We believe that enactment of this bill would send a powerful message that the U.S. intends to preserve and protect a secure, reliable, and open internet.” 
• The cybersecurity issue is a key focus of The Roundtable’s Homeland Security Task Force (HSTF), which encourages measures to address the global cyber threat and effective information sharing..

The Roundtable’s Homeland Security Task Force will discuss cyber security and other issues affecting real estate during its upcoming meetings at FBI offices in New York (Oct. 18) and Washington, DC (Nov. 13).

A day-long briefing this week by senior officials of the Federal Bureau of Investigation (FBI) to The Roundtable’s Homeland Security Task Force (HSTF) and the National Retail Federation focused on maintaining vigilance in the commercial sector during the holiday season; counterterrorism trends; criminal gang trends; organized retail crime; terrorism financing and an analysis of recent active shooter and workplace violence incidents.     

This week, the  Real Estate Information Sharing and Analysis Center ( RE-ISAC ) was featured in an article in Homeland Security Today written by Roundtable SVP Clifton “Chip” Rodgers Jr. and Andy Jabbour of Gate15, which provides support to the RE-ISAC.

• The special joint session meeting coincided with an article about the Real Estate Information Sharing and Analysis Center (RE-ISAC) in Homeland Security Today by Roundtable Senior Vice President Clifton “Chip” Rodgers Jr. and Andy Jabbour of Gate15, which provides support to the RE-ISAC.  (RE-ISAC Working to Secure the Facilities That House America’s Economy, Nov. 13)

• “Terrorism continues to pose a clear and present danger to our nation, to the American economy and to the commercial facilities sector.”  Homeland Security Today notes, “In response to these ongoing threats, the RE-ISAC has brought together industry organizations to work together with federal, state and local law enforcement and intelligence agencies to prevent, detect and respond to terrorist threats and malicious incidents.”

• The article also states, “The RE-ISAC is the designated conduit of terrorism, cyber and natural hazard warning and response information between the government and the commercial facilities sector.”    

• The Real Estate Roundtable in February 2003 organized the RE-ISACas a public-private partnership between the U.S. commercial facilities sector and federal homeland security officials to proactively manage risk and strengthen the security and resilience of the U.S. commercial facilities/real estate critical infrastructure.

• While the Department of Homeland Security’s National Protection and Programs Directorate (NPPD) is the primary federal partner of the RE-ISAC, the organization also works with the FBI, the National Joint Terrorism Task Force, Federal Emergency Management Agency (FEMA) and a number of other law enforcement and intelligence agencies.

• DHS announced yesterday that Congress passed legislation to reorganize the NPPD, creating the Cybersecurity and Infrastructure Security Agency – CISA. (DHS, Nov. 13)

• The CISA Act (H.R. 3359), which passed the House yesterday, the Senate in October, and was signed by President Trump today, will prioritize CISA’s mission as “the Federal leader for cyber and physical infrastructure security.”

Separately, The Financial Crimes Enforcement Network (FinCEN) on Nov. 15 announced the issuance of revised Geographic Targeting Orders (GTOs) that require U.S. title insurance companies to identify the natural persons behind shell companies used in all-cash purchases of residential real estate.  The purchase amount threshold, which previously varied by city, is now set at $300,000 for each covered metropolitan area.  The GTOs cover certain counties within the following major U.S. metropolitan areas: Boston; Chicago; Dallas-Fort Worth; Honolulu; Las Vegas; Los Angeles; Miami; New York City; San Antonio; San Diego; San Francisco; and Seattle. (Wall Street Journal, Nov. 15)

The Financial Accounting Standards Board (FASB) this week voted to reject a proposal by regional banks to soften the impact of a change that will force banks to book losses on bad loans much faster.  This rejection means that the Current Expected Credit Loss (CECL) accounting standard will proceed as planned at the beginning of 2020 for publicly traded U.S. banks and later for other financial institutions.  A business coalition that included The Real Estate Roundtable last month had urged further study amid concerns that CECL may soon begin to reduce aggregate bank lending.  (Coalition Letter, March 5)

The Financial Accounting Standards Board (FASB) this week voted to reject a proposal by regional banks to soften the impact of a change that will force banks to book losses on bad loans much faster.

• The new CECL model will require certain financial institutions to estimate the expected loss over the life of a loan beginning in January 2020 – a significant change to the way banks calculate reserves on assets.  CECL may cut into earnings and regulatory capital by forcing some banks to boost their loan-loss reserves.  (Wall Street Journal, April 3) 
• For real estate, there is concern is that banks may reduce lending volumes as they build up additional capital reserves to be in compliance with CECL.  (Roundtable Weekly, March 8) 
• The regulatory change in how banks estimate loan and lease losses (ALLL) will require substantial changes in data analytics and financial methodologies.  Details on FASB’s April 3 Tentative Board Decision are available here. 
• The March 5 coalition letter cited a 2018 KPMB survey showing companies are struggling to make certain accounting, modeling and data decisions to be in compliance with CECL.  (KPMG, “Financial institutions feeling the crunch in countdown to CECL implementation”)  
• Rep. Blaine Luetkemeyer (R-MO) and Ranking Member Patrick McHenry (R-NC) recently wrote to Securities and Exchange Commission Chairman Jay Clayton expressing concerns about the coming CECL loan loss accounting approach and its effects on markets and investors.  Luetkemeyer and McHenry wrote that they are worried CECL implementation-which begins in 2020 for publicly traded banks-could have unanticipated effects on the financial and housing industries with questionable benefit.  
• The CECL accounting rule change was issued by the Financial Accounting Standards Board (FASB) in June 2016 as a result of the 2008 financial crisis.  (FASB, Credit Losses) 
• The Roundtable’s Real Estate Capital Policy Advisory Committee (RECPAC) will continue to address the potential impact of the new accounting standard and work with the CECL business coalition on CECL implementation issues. 

In addition to The Roundtable, the 8 signatories to the March 5 coalition letter were the U.S. Chamber of Commerce, American Bankers Association, Bank Policy Institute, Commercial Real Estate Finance Council, Mortgage Bankers Association, National Association of Realtors, Credit Union National Association and National Association of Federal Credit Unions. 

The Treasury Department on Wednesday released a highly-anticipated, second set of Opportunity Zone (OZ) regulations that seek to provide certainty to potential OZ investors and drive economic development in economically distressed communities nationwide. (reference: 169-page Treasury regulations and IRS news release, April 17) 

President Donald Trump with Scott Turner, executive director of the White House Opportunity and Revitalization Council,  at the April 17 Opportunity Zone Conference with state, local, tribal and community leaders. (Official White House Photo by Shealah Craighead)

• A White House Opportunity Zones event on Wednesday featured President Trump, Treasury Secretary Steven Mnuchin and officials from local governments around the country.  (White House Remarks and  Video, April 17)
• The Treasury Department designated more than 8,700 low-income census tracts as Qualified Opportunity Zones last June. (IRS Notice 2018-48).  Treasury estimates that Opportunity Zones will boost investment in these targeted areas by $100 billion.  According to White House Chief Economist Kevin Hassett (citing Zillow data), property values in Opportunity Zones have appreciated by about 20 percent since zone designations were made in early 2018. 
• Roundtable President and CEO Jeffrey DeBoer said, “We are pleased that these proposed regulations provide answers to many key structural and operational questions that have concerned potential opportunity zone investors, developers, and business owners.   The opportunity zone program, designed to stimulate investment in economically struggling communities nationwide, has tremendous potential.   We look forward to continuing to work with policymakers to reduce unnecessary, counterproductive aspects of the new law.”

The Roundtable previously submitted two comment letters to policymakers on Opportunity Zones, one in June 2018 and one in December 2018. (Roundtable Weekly: Oct. 19, and  Dec. 21). The rules issued this week expanded on the previously proposed regulations and address a variety of OZ investment issues.  Positive developments in the newly proposed regulations include the following:

The  169-page Treasury regulations and IRS news release, April 17

• Opportunity Funds that own more than one property can sell assets individually after a 10-year holding period and fund investors can exclude the gain, without a requirement that the fund investor sell his or her interest in the fund.  In addition, the regulations clarify that multi-asset Opportunity Funds that choose to set up separate funds for individual assets can reduce the administrative burden on their investors through the use of a “feeder” fund that aggregates the fund interests;
• Opportunity Funds can make nontaxable, debt-financed distributions to fund investors during the 10-year holding period, provided they comply with “disguised sale” rules that limit distributions made during the first 2 years;
• Land (improved and unimproved) is qualified opportunity zone business property provided it is used in an active trade or business, and it does not have to meet the “original use” or “substantial improvement” requirements that apply to structures;
• The working capital safe harbor, which provides up to 31-months for Opportunity Funds to deploy capital, is further liberalized.  Specifically, the regulations clarify that: (1) subsequent contributions of capital to the same Opportunity Fund are subject to a new 31-month period, and (2) the 31-month period is extended if the delay is due to waiting for government action or approval;
• Leased property, including property leased by an Opportunity Fund from a related property, can qualify as opportunity zone business property if certain requirements are met.  This clarification in particular should help existing owners of property in Opportunity Zones participate in the tax incentives without having to sell or dispose of their ownership interest; 

Roundtable President and CEO Jeffrey DeBoer said, “We are pleased that these proposed regulations provide answers to many key structural and operational questions that have concerned potential opportunity zone investors, developers, and business owners.”

• Real estate that straddles an Opportunity Zone border can qualify as opportunity zone business property as long as the portion of the property that is inside the zone is substantial relative to the total property;
• While the sale of an asset during the 10-year holding period is generally a taxable event for the Opportunity Fund investors, the regulations infer that a fund could do a like-kind exchange and as long as the replacement property is qualified opportunity zone business property, the gain would be deferred for the investors;
• Lastly, the regulations include a number of changes that aim to facilitate investment in operating businesses, which should increase tenant demand for commercial real estate located in Opportunity Zones.

The IRS has scheduled a public hearing on the second set of proposed rules for July 9, 2019. Comments are due 60 days after the proposed rules are published in the Federal Register. A third set of proposed guidelines is expected on Opportunity Fund’s reporting requirements to measure the effectiveness of the program.

The OZ program’s goals and incentives were the focus of a Jan. 29 discussion during The Real Estate Roundtable’s State of the Industry Meeting, which featured Sen. Scott and Roundtable member Geordy Johnson (CEO, Johnson Development Associates, Inc.). (Roundtable Weekly, Feb. 15) 

The Roundtable’s Tax Policy Advisory Committee (TPAC) plans to continue its work with policymakers on the OZ program and regulations affecting Qualified Opportunity Funds.