Nonprofit Seeks Clarity Regarding Opportunity Zones

July 20, 2018

The Honorable David J. Kautter
Acting Commissioner of the Internal Revenue Service and
Assistant Secretary of the Treasury for Tax Policy
U.S. Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220

Mr. Scott Dinwiddie
Associate Chief Counsel
Income Tax & Accounting
Internal Revenue Service
1111 Constitution Avenue, NW
Washington, DC 20224

Dear Acting Commissioner Kautter and Mr. Dinwiddie:

On behalf of Enterprise Community Partners, Inc., I write to you today with an urgent request for clarification and guidance on the Opportunity Zones provision of the Tax Cuts and Jobs Act of 2017. I understand the intention for Opportunity Zones to be a flexible investment tool, but currently a lack of clarity is impeding potential investments in distressed communities nationwide. Enterprise believes that additional guidance from you will ensure that this new tax incentive meets its intended goal — that is, benefiting residents of economically distressed communities.

Enterprise is a leading provider of the development capital and expertise it takes to create decent, affordable homes and rebuild communities. Since 1982, we have raised and invested $36 billion in equity, grants and loans to help build or preserve nearly 529,000 affordable homes in diverse, thriving communities. This includes community investments through Enterprise Community Loan Fund, a Department of Treasury-certified Community Development Financial Institution (CDFI) and one of the largest nonprofit loan funds in the country. Enterprise has also been the recipient of $960 million in New Markets Tax Credit awards.

Unfortunately, the lack of guidance around the rules and administration of Opportunity Zones is delaying our ability to quickly aggregate and deploy capital in designated Opportunity Zones. I raised these concerns to Congress in testimony before the Joint Economic Committee on “The Promise of Opportunity Zones” (see Attachment 1 for the full text of my testimony). Current uncertainty is hindering many potential investors and fund managers from utilizing this new tool, and we have been engaged in working groups that bring together broad coalitions of stakeholders seeking clarification on the implementation of Opportunity Zones. I would like to particularly emphasize our support for the letter submitted by the Opportunity Zones Working Group, hosted by Novogradac & Company LLP, on July 16 (see Attachment 2 for the full text). Enterprise is a signatory on this letter, which requests guidance and clarification on ten specific questions related to the Opportunity Zones provision.

I urge you to immediately consider these requests for technical clarifications on Opportunity Fund investments so that Enterprise and other affordable housing and community development lenders can have the certainty we need to efficiently structure Opportunity Funds and begin investing in communities.

I would like to specifically highlight Enterprise's interest in Q9 of the Opportunity Zones Working Group letter, which requests guidance on the eligibility of residential rental property to be a Qualified Opportunity Zone Business. Enterprise recognizes that affordable housing in diverse, thriving communities is a critical foundation for opportunity. We have extensive experience deploying capital into communities through proven public-private partnerships, such as the Low-Income Housing Tax Credit and the New Markets Tax Credit, and using this capital to foster far-reaching revitalization in distressed neighborhoods. We hope to create an Opportunity Fund that aligns with our existing efforts to make well-designed homes affordable in communities that are connected to jobs that pay a living wage, transportation options, healthy food, and educational institutions.

Without clarification from the IRS, investors and fund managers alike are uncertain if Opportunity Fund investments in affordable rental housing will qualify for the tax benefit, which is hindering our ability to deploy capital. We have encountered several potential deals over the last few months that we believe would benefit from the Opportunity Zone tax benefit — including projects that would have built or preserved affordable rental housing — but investors are hesitant to invest without the certainty that they will receive the agreed-upon benefit. Congressional and administration leaders — including Senator Tim Scott (R-SC), lead sponsor of the Investing in Opportunity Act (S. 293, 115), and HUD Secretary Ben Carson — have publicly cited housing as an intended activity in designated Opportunity Zones. However, the absence of specific clarification from the Treasury Department is hindering our ability to move forward with an Opportunity Fund that makes affordable rental housing a principal component of its mission.

Because of our desire to begin accepting funds and deploying capital into our nation's distressed communities, I ask that the IRS immediately provide clarification, either through a Frequently Asked Question (FAQ) document or other proposed rulemaking form, that residential rental property is a Qualified Opportunity Zone Business. A sentence stating that, “Residential rental property qualifies as an Opportunity Zone Business,” would be sufficient. That guidance, together with FAQs addressing the other items included in the attached Novogradac working group letter, will enable Enterprise and our partner organizations to begin utilizing this exciting new investment vehicle to advance affordable housing and community development efforts.

Again, I want to thank you for considering Enterprise's comments on the implementation of Opportunity Zones, and for recognizing the importance of providing clarification and guidance to Opportunity Zone stakeholders. I look forward to the day when I can invite you and your colleagues to tour an Opportunity Zone property and witness firsthand the far-reaching benefits that these investments can have on low-income residents and communities.

If you have any questions regarding these comments, please do not hesitate to reach out to me or to Enterprise's Vice President for Public Policy, Marion McFadden, at mincfadden@enterprisecommunity.org.

Tern Ludwig
Chief Executive Officer
Enterprise Community Partners, Inc.
1 Whitehall Street, 11^th Floor
New York, NY 10004

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Testimony of Terri Ludwig
Chief Executive Officer
Enterprise Community Partners
Before the Joint Economic Committee

“The Promise of Opportunity Zones”

May 17, 2018

Chairman Paulsen, Ranking Member Heinrich and members of the Joint Economic Committee, thank you for the opportunity to testify on the Opportunity Zones provision that was included in the Tax Cuts and Jobs Act of 2017.

I am Terri Ludwig, chief executive officer of Enterprise Community Partners (Enterprise). Enterprise is a proven and powerful nonprofit that improves communities and people's lives by making well-designed homes affordable. For over 35 years, we have increased the impact of investment in affordable homes by engaging the right partners, directing private and public capital to the right places, and working with government leaders to offer nonpartisan advice and — support. Nationwide, Enterprise has invested $36 billion in equity, giants and loans to help build or preserve nearly 529,000 affordable homes in diverse, thriving communities in all 50 states. Last year we invested $7.2 billion, resulting in the creation or preservation of more than 26,000-affordable homes, almost 35,000 workforce homes, and 35 million square feet of commercial space. I have spent the past 30 years working in financial services, real estate, social sector and entrepreneurial leadership. My career has focused on creating opportunity in lower-income areas: at Accion I led the then-largest U.S. microfinance program, which brought affordable small business loans to entrepreneurs, and I was president and CEO of Merrill Lynch's community reinvestment business unit.

Enterprise builds much more than just housing. We build vibrant communities. We know that access to the social determinants of health can influence an individual's trajectory in life, which is why our investment portfolio also includes health clinics, schools and access to healthy foods and public transportation. Together with safe, decent, affordable quality housing, these are the attributes of economic mobility and opportunity. We have touched millions of lives through our work — in urban, rural and all other types of communities — but there is more to be done. We know that the zip code in which a person lives can still affect the life they can have.

I am honored to share with the committee our thoughts on how the public policy goals that gave rise to the creation of Opportunity Zones — bolstering inclusive economic growth — can be realized. My testimony includes:

• An overview of the work we have been doing to ensure that Opportunity Zones are successfully utilized.

• Feedback from communities throughout the nation.

• Recommendations for implementation of Opportunity Zones.

Other communities, however, have expressed concerns that additional private investment without an explicit commitment to benefiting local residents and businesses could unintentionally displace the very residents and businesses that Congress is seeking to support through this new tax benefit. In Oregon, we assisted members of the governor's team in incorporating a measure of housing stability into their process, allowing them to focus on areas where residents were less likely to be displaced by increasing land values as a result of investments.

In these and other cases, we are seeing local communities work to determine what is best for them. In fact, Enterprise applauds the flexibility of this tax incentive and its responsiveness to local needs and priorities and is excited about the potential for additional investment in our nation's distressed communities.

At the same time, the risk of not meeting the intended goal of inclusive economic growth that benefits existing residents and businesses also must be considered. For this reason, we urge that optimism be balanced with a sense of caution. This tax incentive — and the funds that will be created as a result — must be developed carefully and with attention to the long-term goals of communities, and with an eye towards potential negative unintended consequences. In particular, we believe that there is an important role for government to play — at the federal, state, and local level — to ensure that these investments advance local policy priorities and that their benefits are fully realized by all members of a community receiving the investment, not just a few. For instance, a central feature of Colorado's process for Opportunity Zone nominations was community engagement, as the state carefully solicited input prior to selecting their tracts. And in Michigan, the state housing finance agency is exploring innovative ways to incentivize affordable housing development in designated Zones.

Recommendations for Implementation

Enterprise and our partner organizations are eagerly waiting for the U.S. Department of Treasury and the Internal Revenue Service to release additional guidance on certifying and structuring Opportunity Funds. We have identified two primary sets of issues that we believe will be critical to focus carefully on moving forward: promoting the transparency of Opportunity Fund activities, and ensuring accountability and preventing abuse in implementation. I want to share more about those here.

Promote Transparency to Ensure Accountability and Evaluate Impact. In the Conference Report that accompanied the Tax Cuts and Jobs Act, Congress clearly directed Treasury to report back on the use Opportunity Funds. To do so, Treasury must be able to collect and share data from the start. Due to the foregone revenue associated with the Opportunity Zones tax benefit, Enterprise believes that Opportunity Funds should be required to report specific investment activity to ensure accountability of federal resources. Because this tax benefit specifically incents investment in distressed communities, it is important that information is made publicly available so that stakeholders, including members of Congress, can evaluate the impact that these investment funds have on local residents and businesses.

The Conference Report included the following guidance related to annual reporting requirements:

The Secretary or the Secretary's delegate is required to report annually to Congress on the opportunity zone incentives beginning 5 years after the date of enactment. The report is to include an assessment of investments held by the qualified opportunity fund nationally and at the State level. To the extent the information is available, the report is to include the number of qualified opportunity funds, the amount of assets held in qualified opportunity funds, the composition of qualified opportunity fund investments by asset class, and the percentage of qualified opportunity fund investments. The report is also to include an assessment of the impacts and outcomes of the investments in those areas on economic indicators including job creation, poverty reduction and new business starts, and other metrics as determined by the Secretary.

Enterprise appreciates the guidance laid out in the Conference Report because it could allow Treasury, Congress and stakeholders to understand how the investments are impacting the local economy, community and residents. As Treasury and IRS consider additional guidance and clarification, Enterprise specifically recommends that Opportunity Funds be required, at a minimum, to report:

• Who the fund manager is.

• The state in which the fund is registered.

• Transaction-level information, such as the Zone(s) in which the fund has invested, how much the fund has invested, and in what the fund has invested (i.e. real estate, business, etc.).

And to provide an additional degree of public accountability, Enterprise recommends that Treasury make this information publicly available and allow stakeholders to comment on a fund's investments.

This transparency is in line with the original intent of IIOA and will allow Congress to evaluate the efficacy and impact of the tax benefit in meeting its intended policy goals, and thus make an informed decision about the future extension or expansion of Opportunity Zones.

Ensuring Accountability and Preventing Abuse in Implementation. Opportunity Zones have the potential to catalyze investment in affordable housing, businesses that create living-wage jobs, public transportation, and other necessities for sustainable and prosperous communities. At the same time, our collective vision for Opportunity Zones cannot be realized without practical guardrails that help to ensure that the residents and business owners currently living in newly designated Qualified Opportunity Zones in fact benefit from the resulting economic growth. In the Tax Cuts and Jobs Act, Congress gave the implementing agency the authority to promulgate regulations to prevent abuse:

The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including: (A) rules for the certification of qualified opportunity funds for the purposes of this section, (B) rules to ensure a qualified opportunity fund has a reasonable period of time to reinvest the return of capital from investments in qualified opportunity zone stock and qualified opportunity zone partnership interests, and to reinvest proceeds received from the sale or disposition of qualified opportunity zone property, and (C) rules to prevent abuse.

Therefore, we recommend that the Department of Treasury issue regulations to prevent abuse not only to ensure that tax benefits inure to investments consistent with good public policy, but also lead to a direct and sustained benefit for the residents and local businesses in the census tract at the time it was designated as an Opportunity Zone.

Because Opportunity Zones provide a federal tax benefit for investing in some of the nation's most vulnerable communities, Enterprise believes that it is critical that these investments benefit the communities that they are impacting. Every community has its own challenges, so “direct and sustained” benefits will look different across geographies, and state and local governments will need to consider policies and programs that fit their needs. However, Enterprise believes it is important for the federal government to explicitly prevent Opportunity Fund investments that would disproportionately harm low-income residents and local businesses.

For example, we recommend that Treasury prohibit abusive investments that result in the net elimination of affordable housing (housing that is affordable to residents earning up to 120 percent of Aiea Median Income) because housing affordability is vital to achieve the intent of the IIOA. The definition of abuse should also include the refinancing of existing projects. We believe that investments that do not result in new activities or harm low- and modest-income residents will be contrary to our collective public policy goals. We urge the use of notice-and-comment rulemaking to allow affected communities to participate in identifying practices that would constitute abuse.

These are the priorities that Enterprise is committed to achieving through our own work in distressed communities, and we encourage federal policy mechanisms to ensure that other stakeholders also address the needs of the communities in which they are investing.

Conclusion

Enterprise is eager to add Opportunity Zones to our industry's toolkit of affordable housing and community development resources, and we applaud the committee for convening this hearing to consider how to most efficiently implement this new tax benefit. If implemented with transparent reporting requirements and an explicit commitment to prevent abuse — and in doing so, connecting local residents to opportunity — Opportunity Zones could have a transformative impact in distressed communities nationwide.

Thank you for your efforts to ensure that distressed communities receive critical private investment capital. Enterprise would be pleased to work with you on implementing our recommendations and discussing these issues further.

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ⁱ Opportunity Zones were introduced in the 115^th Congress through the Investing in Opportunity Act (S. 293 and II.R. 828), bipartisan legislation sponsored by Senator Tim Scott (R-SC), Senator Cory Booker (D-NJ), Congressmen Pat Tiberi (R-OH) and Congressman Ron Kind (D-WI). The concept for the Investing in Opportunity Act was introduced by the Economic Innovation Group, a bipartisan public policy organization that combines innovative research and data-driven advocacy to address America's most pressing economic challenges.

On February 2, 2018, Senator Scott, Senator Booker, Rep. Tiberi and Rep. Kind released a statement about the enactment of Opportunity Zones in the Tax Cuts and Jobs Act of 2017. Citing the challenges created by closing businesses, lack of access to capital, and declining entrepreneurship, these elected officials highlighted the potential for Opportunity Zones to “expand the resources to restore economic opportunity, job growth, and prosperity for those who need it most.”

Enterprise supports the expansion of resources to address these challenges. We also believe that affordable housing and local businesses are critical for successful community development and prosperous neighborhoods, and we encourage lawmakers to commit to these community assets while implementing Opportunity Zones.

ⁱⁱ The Economic Innovation Group estimates that there is $6 trillion in untapped capital gains being held in stocks and funds. Opportunity Zones make it possible to reinvest this capital into communities that need it the most.

ⁱⁱⁱ New research from the Urban Institute reports on trends in economic health and inclusion across many cities, including within a smaller subset of cities that have experienced an economic recovery. The researchers identify key lessons and common building blocks that can support progress on inclusion during a city's economic recovery.

^iv The Low-Income Housing Tax Credit (Housing Credit) is the nation's primary tool for developing and preserving affordable rental housing. Since 1986, it has financed three million affordable rental homes, supported 3.4 million jobs annually, and generated $323 billion in local income nationwide.

Congress reaffirmed the Housing Credit's role in the tax code by preserving it in the Tax Cuts and Jobs Act of 2017. However, as a result of the corporate tax rate being lowered from 35 to 21 percent, investor demand for the Credit has decreased, which has impacted the amount of equity in the Housing Credit market. As a result, accounting firm Novogradac & Company estimates that approximately 235,000 fewer affordable rental homes will be produced over the next decade. Given that over 11 million households already pay more than half of their income on rent, this reduction production will exacerbate the vast and growing affordable housing crisis nationwide.

Congress made an important down payment on the Housing Credit in the Consolidated Appropriations Act of 2018 by enacting a temporary, 12.5 percent expansion of the Housing Credit for four years (2018-2021) and the new permanent option for income averaging in Housing Credit developments. Novogradac & Company estimates that this temporary expansion will result in the production of approximately 28,400 affordable rental homes over the next decade.

Enterprise applauds Congress for enacting these critical provisions to strengthen and expand the Housing Credit. While this is an important step forward, the country still faces a reduction in affordable housing production because of the lower corporate tax rate. Enterprise encourages Congress to enact the Affordable Housing Credit Improvement Act (S. 548), bipartisan legislation sponsored by Senate Finance Committee Chairman Orrin Hatch (R-UT) and Senator Maria Cantwell (D-WA). This bill would increase Housing Credit allocation authority by 50 percent, phased-in over five years, and would enact nearly two-dozen other provisions to strengthen the Housing Credit. The 50 percent cap increase would allow for the production or renovation of approximately 400,000 affordable rental homes over the next decade, which would fully make up for the reduced production resulting from the Tax Cuts and Jobs Act.

^v The New Markets Tax Credit (NMTC) is an effective, targeted and cost-efficient financing tool that increases the flow of capital to businesses and low-income communities by providing a modest tax incentive to private investors. Since it was authorized in 2000, NMTC has leveraged nearly $80 billion in total capital investment to businesses and revitalization projects in communities with high rates of poverty and unemployment. NMTC has also generated more than one million jobs. This successful public-private partnership exemplifies how patient capital can directly benefit low-income residents, communities, and local businesses in urban and rural areas.

Congress reaffirmed the importance of NMTC by preserving the Credit in the Tax Cuts and Jobs Act of 2017. Enterprise applauds Congress for recognizing the value of this proven and effective community development tool. However, NMTC authorization expires at the end of 2019 unless Congress extends the Credit. Enterprise urges Congress to enact the New Markets Tax Credit Extension Act of 2017 (S. 384, H.R. 1098), bipartisan legislation to permanently extend NMTC.

^vi Through our Opportunity 360 platform, Enterprise Community Partners created a specific data and mapping tool to specifically help states and others interested in Opportunity Zone eligibility to determine which tracts in their state or region are eligible. The tool also depicts how eligible tracts relate to other federal programs and designations, including Low-Income Housing fax Credit developments, New Markets Tax Credit projects, Choice Neighborhoods, Empowerment Zones, and others.

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July 16, 2018

Mr. Scott Dinwiddie
Associate Chief Counsel
Income Tax & Accounting
Internal Revenue Service
1111 Constitution Avenue, NW
Washington, DC 20224

Re: Priority Guidance Request on Opportunity Zones

Dear Mr. Dinwiddie:

On behalf of the members of the Novogradac Opportunity Zones Working Group (the OZ Working Group), we are requesting immediate guidance on priority issues regarding various provisions of Internal Revenue Code Section (IRC) 1400Z-2.

While we identified numerous items needing guidance in our previous letter dated March 9, 2018, we are requesting the Department of Treasury (Treasury) and the Internal Revenue Service (IRS) focus their immediate attention on providing quick answers to the following eleven questions. Based upon our collective experiences, the lack of guidance around these priority issues are the most common barriers to taxpayer investment. We are hopeful that guidance on these items can be quickly provided through IRS FAQs. We have narrowed this guidance request to those areas that are both hindering investment in opportunity zones and we believe are readily addressable by the IRS through its FAQs page.

We have divided our priority guidance request into five sections:

Our guidance request with respect to each of the identified issues is structured in three parts:

The members of the OZ Working Group are participants in the community development finance field, and include investors, lenders, for-profit and nonprofit developers, community development financial institutions, community development entities, trade organizations and other related professionals. These stakeholders are working together to suggest consensus solutions to technical opportunity zone incentive issues and provide recommendations to make the opportunity zones incentive more efficient in delivering benefits to low-income communities.

We appreciate your consideration of these comments and look forward to an opportunity to discuss these issues further.

Yours very truly,

Michael J. Novogradac, Managing Partner

John S. Sciarretti, Partner

Novogradac & Company LLP
Dover, OH

CC:
Michael Novey, Office of Tax Policy, Treasury
Julie Hanlon-Bolton, ITA, IRS

Attachments: Recommendations for Guidance on Opportunity Zones

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Recommendations for Guidance on Opportunity Zones

A. Gains eligible for deferral

B. Application of opportunity zones to partnerships

C. Qualification of temporary cash reserves

D. Qualification of Opportunity Zone Businesses

E. Tax Implications of Debt