Do you have to invest in a QOZB through a QOF or can you just create a business and fund with qualified capital gains? Does the 31-month safe harbor period apply to both QOF and QOZB?
To get the tax benefits under the OZ program, only QOFs can invest in QOZBs. The working capital safe harbor only applies to QOZBs, but there is a carve out for QOFs directly developing real estate or otherwise substantially improving tangible property.
To invest in a QOZB and have the investment qualify for the opportunity zone tax incentives, any capital gain must be directly invested in a QOF, and the QOF will invest directly in the QOZB. There are three requirements that must be met by the QOF when making an investment in a QOZB. First, the QOF must acquire stock or partnership interests, at its original issue (directly or through an underwriter) from the QOZB (which must be taxable as a corporation or partnership) solely in exchange for cash. Second, as of the time such stock or partnership interest is issued, such corporation or partnership must be a QOZB (or, in the case of a new business, being organized for purposes of being a QOZB). Third, during substantially all of the QOF’s holding period for such stock or partnership interest, such corporation or partnership must also qualify as QOZB. The regulations provide that ‘‘substantially all’’ means 90 percent, with compliance tested semi-annually. Additionally, the 31-month working capital safe harbor only applies to the QOZB. QOFs are ineligible to utilize the benefits of the working capital safe harbor. However, the final regulations provide that for purposes of the 90 percent investment standard, property that a QOF is substantially improving but has not yet placed in service or used in a trade or business is treated as meeting all of the QOZBP requirements over the property’s 30-month substantial improvement period if the QOF reasonably expect that the property will be substantially improved and used in the eligible entity’s trade or business in a QOZ by the end of that 30-month period.
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