Proposed Rulemaking on Qualified Opportunity Funds
Created by the Tax Cuts and Jobs Act (enacted December 2017), Opportunity Zones are economically distressed areas where investments in development projects can receive special tax breaks. Opportunity Funds use the investments to stimulate development in these areas.
Currently, investors can defer taxes on capital gains invested in these Funds when the investment is sold or exchanged by the Opportunity Fund or December 31, 2026 at the latest. If an investor has money in the Fund for more than five years, then 10% of the capital gains earned are excluded from calculating income and deferred taxes. If the investment is held for more than seven years, the percentage increases to 15%. After ten years, the fair market value at the time of sale or exchange determines the amount of any deferred taxes or exclusions.
Opportunity Funds may be corporations, LLCs, or partnerships making investment business structures flexible. It is unclear how the opportunity zone system will affect tribal areas because states nominate census areas for opportunity zone designation. There is potential for future regulations to include consultation with tribal governments for designating opportunity zones.
The IRS has released proposed regulations for implementing the new Opportunity Zone tax breaks. The open comment period will begin after official publication in the Federal Register and will last for sixty days. Additionally, the IRS is planning a tribal consultation to obtain additional input on the proposed rules, including guidance on trust land leases and other potential tribal concerns. IRS Pre Notice of Proposed Rulemaking
RES 2019 – Tribal 8(a) – Hemp legalization Opportunity Zones
We attended Res 2019 in Nevada, where they had a record attendance of Native Business and Tribal leaders. The work sessions included the interest Tribes and tribal businesses are showing in the production Hemp as a crop and development of Hemp products since the legalization of Hemp in the Farm Act. And, the conference provided sessions with detailed information on how to start up a tribal economic development division. There were also interesting sessions on taking advantage of the Opportunity Zone Tax incentives, created by the Tax Cuts and Jobs Act, that offers new options for investment in economically distressed communities. Certain investors believe that the creation of Qualified Opportunity Zones will be significant.
Our firm is currently active in drafting Hemp production ordinances for clients and understanding the market for Hemp and Hemp products. We also can help clients understand the Tax Cuts and Jobs Act and the potential offered by Opportunity Zones. And, many of those attending RES are part of or have started Tribal 8(a) corporations. Our firm has experience in this area as well, and won a significant case for a Tribal 8(a) that had been terminated, by reversing the agencies decision. Please let us know if we can assist you with tribal 8(a) or individual 8(a) issues in some way. We discovered at the conference that many Native 8(a) applications had been lost by SBA after the government shut down. We would very much like to assist you, if you have similar 8(a) questions or concerns.
We offer consultation and legal services for tribal owned enterprises, contractors, and other businesses in Indian Country. We can assist you with the SBA 8(a) process, understanding federal program requirements, applying for government contracts, and legal issues that arise from venturing with non Native Corporations.
In addition we can help with:
- Enacting a Tribal code for creating corporations and other business entities
- Choosing a structure that best serves your business needs
- Obtaining Tribal 8(a) certification and status
- Forming a business under appropriate law
- Seeking joint venture partners
- Understanding government regulations and impact on business
- Contacting the federal government procurement offices.