By Edward Brown, Esq.
One of the highly publicized tax incentives today is a great opportunity for those who intend to sell (or who recently sold) an asset to an unrelated party that triggers a huge capital gain. Under new proposed Treasury Regulations 1400Z, a new income tax strategy is available if within 180 days of a capital asset sale, the taxable capital gain that is otherwise triggered in such sale transaction is reinvested in a qualified business investment (typically via a qualified opportunity fund or QOF) that is located in one of the many zones throughout the United States that are in need of some economic stimuli. In such event, the seller can elect (using IRS Form 8949) to have the inherent capital gains tax deferred until December 31, 2026. The deferral will be cut short however if the new investment is transferred before December 31, 2026 (unless (i) the deferred gain is once again reinvested within another 180 days or (ii) the transfer is a contribution to a grantor trust).
Capital Gain Avoidance. Some of the deferred taxable gain can actually be totally avoided. More specifically, the deferral of gain can be partially excluded by 10% or 15% if you hold the investment for the long term. For example, if you invest in 2019 and hold the investment for at least seven years (so, let’s say until the end of 2026, since, as noted above, that is when this deferral opportunity ends), you permanently exclude 15% of the taxable capital gains. A similar 10% rule applies to a five-year holding period. If you do the math, you can see that in order to get the 15% exclusion, you must invest in one of these qualified opportunity zone funds this year.
Furthermore, any post-acquisition appreciation that occurs with respect to the new investment itself can completely avoid any capital gains tax if the new investment is held for at least ten years (provided the gain recognition event, such as a sale, occurs before the end of 2047) and the proper election is made.
Keep in mind however, if you gift away the qualified investment before December 31, 2026, that would be considered a transfer that triggers any deferred capital gains tax, meaning the deferred tax would be payable with respect to the tax year in which the gift occurred. Of course, as intimated above, if you gift to a grantor trust for an intended beneficiary, you can avoid such tax acceleration.
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