Massachusetts Guidance Regarding Opportunity Zone Investments

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TIR 19-7: Massachusetts Treatment of Investments in Qualified Opportunity Zones

Massachusetts Guidance Regarding Opportunity Zone Investments

Authors: Joshua Caswell of Howland Evangelista Kohlenberg LLP

The Tax Cuts and Jobs Act amended the Internal Revenue Code (the “Code”) to add Sections 1400Z-1 and 1400Z-2 (collectively, “Subchapter Z”) related to Opportunity Zones. Subchapter Z was designed to spur investment in designated distressed communities throughout the country by granting investors preferential tax treatment. Section 1400Z-1 includes definitional and procedural rules for designating Opportunity Zones. Section 1400Z-2 allows taxpayers to elect to receive certain federal income tax benefits to the extent that those taxpayers timely invest eligible gains into Opportunity Zones through a Qualified Opportunity Fund (“QOF”), an investment vehicle organized as a corporation or partnership for the purpose of investing in qualified opportunity zones.

Generally, investments in QOFs come with three main tax benefits: (1) investors can defer tax on capital gains timely invested into a QOF until no later than December 31, 2026; (2) investors that hold the QOF investment for five or seven years upon the expiration of the deferral period can receive a 10% or 15% reduction on their deferred capital gains tax bill; and (3) investors that sell the QOF investment after holding the investment for at least 10 years can receive the added benefit of paying no tax on any post-acquisition realized appreciation in the QOF investment.

The Massachusetts Department of Revenue (“DOR”) issued a Technical Information Release on June 17, 2019 (the “TIR”) intended to inform taxpayers and practitioners of the DOR’s official position on the treatment of QOF investments. TIR 19-7.

The TIR provides that because the Massachusetts personal income tax rules (including partnership tax rules) are based upon the Internal Revenue Code as amended on January 1, 2005 and not upon the current code, individuals and partnerships that invest in QOFs will not be able to take advantage of the tax benefits enumerated under Subchapter Z. For personal income tax purposes, a taxpayer who elects to defer gains under Subchapter Z must recognize such gains for Massachusetts income tax purposes in the year of the sale or exchange giving rise to such gains. Additionally, the basis adjustment rules under Subchapter Z do not apply in calculating future gains that must be recognized (for Massachusetts income tax purposes) upon the sale or exchange of a QOF investment.

The TIR also provides that because Massachusetts generally conforms to the Internal Revenue Code as currently in effect for corporations, for corporate excise tax purposes taxpayers who elect to defer capital gains under Subchapter Z will also defer such gains for Massachusetts purposes. Similarly, the federal basis adjustment rules under Subchapter Z will apply to corporations for Massachusetts purposes.