NMHC/NAA Viewpoint We support tax reform that promotes economic growth and investment in rental housing without unfairly burdening apartment owners and renters relative to other asset classes.
In December 2017, Congress enacted the Tax Cuts and Jobs Act, the most sweeping overhaul to the nation’s tax laws in over 30 years. The Act includes numerous critical victories for the multifamily industry and keeps intact the industry’s business model. The multifamily industry is now focused on ensuring that the Treasury Department implements the new law as Con-gress intended so that multifamily firms can continue to successfully develop and operate properties. During the tax reform debate, the industry advocated for the following priorities for tax reform:
- Flow-Through Entities. The multifamily industry is dominated by “flow-through” entities (e.g., LLCs, partnerships, and S Corporations) instead of publicly-held corporations. This means the company’s earnings are passed through to the equi-ty owners who pay taxes on their share of the earnings on their individual tax returns. Additionally, a significant number of industry participants are organized as REITs that generally pay no tax at the entity level and pass-through dividends to shareholders. By reducing individual income tax rates and establishing a new 20 percent deduction for qualifying flow-through income and REIT dividends, both effective through 2025, tax reform will benefit owners and operators of multifamily housing.
- Deduction for Business Interest. Multifamily developers generally borrow, in many cases as much as two-thirds of total cost, to finance apartment development. Curtailing the current deduction for business interest expenses would greatly increase the cost of debt financing for projects and inhibit development activity when the nation is suffering from a shortage of apartment homes. While tax reform generally imposes limits on the deductibility of business interest, it exempts certain multifamily small businesses with average annual gross receipts of $25 million or less in the pre-vious three years. Multifamily real estate firms may also elect out of limitations on interest deductibility so long as they agree to depreciate real property over longer periods. However, proposed Treasury regulations limit this elec-tion to multifamily firms that do not qualify for the small business exemption.
- Depreciation Rules. During the tax reform debate, some sought to allow full expensing of multifamily properties while others proposed significantly extending the 27.5-year depreciation period applicable to such properties. Both policies would have fundamentally altered the economics of real estate transactions and disrupted the industry’s business mod-el. Tax reform maintains the 27.5-year depreciation period. However, firms electing out of limits on interest deduct-ibility will have to depreciate properties over 30 years. The industry is working to correct a drafting error that ap-plies a 40-year depreciation period (instead of 30 years) for properties in existence prior to 2018. Notably, tax re-form also allows full expensing of certain non-real property assets through 2022 and bonus depreciation through 2026.
- Like-Kind Exchanges. Like-kind exchange rules enable property owners to defer capital gains tax if, instead of selling their property, they exchange it for, or re-invest in, another comparable property. These rules encourage property owners to remain invested in the real estate market. Tax reform maintains the ability of multifamily firms to engage in like-kind exchanges with respect to real estate, including multifamily buildings.
- Carried Interest. Real estate development carries considerable financial risks. In fact, one in 10 multifamily projects never breaks ground. Because of the risks involved, many real estate partnerships use “carried interest” to encourage innovation and entrepreneurship. Carried interest represents a return on an underlying, long-term capital asset, as well as risk. Developers assume responsibility for risks, including recourse debt, litigation risks and cost overruns. While prior tax law properly treated carried interest as a capital gain for assets held at least one year, tax reform generally ex-tends the holding period to three years. The implications for real estate, however, remain under review given that the new law does not explicitly apply to Section 1231(b) real estate assets.
- Low-Income Housing Tax Credit (LIHTC). The LIHTC is the nation’s major financing incentive for the development of low-income housing. Tax reform maintains both the LIHTC and Private Activity Bonds. Following passage of tax re-form, Congress also increased LIHTC authority by 12.5 percent for 2018-2021, which will partially offset negative con-sequences for the program attributable to the reduction in the corporate tax rate to 21 percent.
- Opportunity Zones. Opportunity Zones are a new incentive designed to spur investment, including in multifamily properties, in distressed communities. Real estate developers and others may establish Opportunity Funds that will be eligible for two tax incentives: First, taxpayers may defer capital gains that are reinvested in Opportunity Funds to as late as December 31, 2026. Notably, gains deferred for five years are eligible for a 10 percent basis step up while gains de-ferred for seven years are eligible for an additional 5 percent basis step up. Second, post-acquisition gains on invest-ments held in Opportunity Funds for at least 10 years may be permanently excluded from income.
More than 75 percent of multifamily firms are flowthrough entities that pay taxes under the individual side of the code.
- Real Estate Coalition Letter on ADS Tax Reform
- Real Estate Industry Continues to Press for 30-Year Depreciation Period for Multifamily Buildings
- End-Of-Year House Tax Bill Includes Beneficial Provision But Lacks Depreciation Fix
- House Votes to Make Permanent Tax Cuts for Pass-Through Businesses
- Top Lawmakers Meet with NMHC Members at 2018 Fall Meeting