Accepted for publication in the CEB Real Property Law Reporter; reprinted with permission. The published version will reflect new developments and may contain proofreading and other changes. The author thanks Michael Wiener for comments.
This article is the first of a six-part series titled Real Estate Tax Tips During the Coronavirus Pandemic which describes selected deadline extensions and tax refund opportunities relating to real estate and the coronavirus pandemic.
- Introduction and overview of disaster relief provisions
- Net Operating Loss (NOL) Carrybacks (IRC §172)
- Limitation on Excess Business Losses (IRC §461(l))
- Depreciation of Qualified Improvement Property (QIP)
- Business Interest Limitation & Method for Amending Returns
- Deadlines for Qualified Opportunity Zones (IRC §1400Z-2), Like-Kind Exchanges (IRC §1031), Deadlines for Involuntary Conversion (IRC §1033), Deadlines for Low-Income Housing Tax Credits (LIHTC)
We hope you find these article written by Andrew Gradman very helpful. As always, please feel free to reach out to our office at (310) 237-3070 for a consultation on how these opportunities and provisions may help you.
This article describes selected deadline extensions and tax refund opportunities relating to real estate and the coronavirus pandemic. The refund opportunities arise from retroactive changes to net operating loss carrybacks (IRC §172), excess business losses (IRC §461(l)), bonus depreciation of qualified improvement property (IRC §168), and business interest (IRC §163(j)). The deadlines discussed are for Qualified Opportunity Funds (IRC §1400Z-2), like-kind exchanges (IRC §1031), involuntary conversions (IRC §1033), and low-income housing tax credits (IRC §42).
This article reflects all relevant IRS guidance through April 19, 2020. For the latest tax developments, see Coronavirus and Economic Impact Payments: Resources and Guidance at IRS.gov. For information on the Small Business Administration’s Paycheck Protection Program, EIDL Loan Advance, SBA Express Bridge Loans, and SBA Debt Relief (all of which are beyond the scope of this article), see Coronavirus Relief Options at sba.gov.
Sources of Authority
Between March 22, 2020 and April 11, 2020, the President declared a major disaster in all fifty states. These declarations were retroactive to January 20, 2020. A nationwide disaster declaration is unprecedented. See The Stafford Act Emergency Declaration for COVID-19, CRS Report, p. 1 (3/13/2020).
A disaster declaration activates several “permanent” disaster relief provisions in the tax law. See Tax Policy and Disaster Recovery, CRS Report, p. 1 (2/11/2020). Among these is IRC §7508A, which authorizes the Internal Revenue Service to postpone tax deadlines for up to one year for “affected” taxpayers. Initially, in IRS Notices 2020-17, 2020-18, and 2020-20, the Service merely granted extensions for income, gift, and generation-skipping transfer returns and taxes due April 15. On April 9, 2020, the Service acted more robustly, extending to July 15 many other deadlines otherwise falling on or after April 1. See IRS Notice 2020-23.
Further tax relief appears in two recent laws: the Families First Coronavirus Response Act (Pub Law 116-127, 134 Stat 178) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (Pub Law 116-136 134 Stat 281). Among other things, the CARES Act retroactively amends parts of the Tax Cuts and Jobs Act (TCJA) (Pub L 115–97, 131 Stat 2054).
Disaster declarations also free up federal funds. These non-tax implications are beyond the scope of this article. For details, see COVID-19 Disaster Declarations and Funding Implications, CA Legislative Analyst’s Report.