Repairs vs. capital improvements

IRS issues long-awaited rules on tax treatmentLEED-ing the way in green building

C corporation acquisitions: Beware of the tax issues

Ask the AdvisorIs structured financing right for me?

Real Estate advisor

May • June 2012

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The IRS has released temporary regulations on the tax treatment of expenditures related to tangible property, such as buildings,

machinery, vehicles, furniture and equipment. The regs directly address the often-confusing issue of how to determine whether an expenditure is to be considered a repair or a capital improve-ment. The answer will affect your tax bill now and in years to come.

Can you deduct that?Property owners often struggle with how to clas-sify their repair and upkeep costs — are they routine maintenance costs, which are immediately deductible against current income? Or are they costs for improvements — betterment, restoration or adaptation of the property — which, under the Internal Revenue Code (IRC), must be capitalized and recovered over time through depreciation?

Under the new regs, the unit of property (which will be analyzed to determine whether a repair or an improvement has occurred) for a building comprises the building and its struc-tural components. When determining whether a cost you’ve incurred is for an improvement to the building, you must apply the improvement standard separately to the primary components of the building — the building structure or any of the specifically defined building systems, such as:

n Heating, ventilation and air conditioning (HVAC) system,

n Plumbing and electrical systems,

n Escalators and elevators,

n Security and fire protection systems,

n Gas distribution system, and

n Any other system identified in published guidance.

If a cost produces an improvement to the build-ing structure or to any of these building systems, you must treat that cost as a capital expenditure.

For example, if you own a building and update the restrooms by replacing plumbing fixtures with more modern options, that would be con-sidered an improvement to the plumbing system. So, you’d treat the amount paid to replace the fixtures as a capital expenditure.

But if you replace only three cracked sinks, you can treat the cost as a deductible expense. The sinks, by themselves, don’t constitute a large portion of the physical structure of the plumbing system, nor do they perform a discrete and critical function in the operation of the plumbing system.

Repairs vs. capital improvements

IRS issues long-awaited rules on tax treatment

The new regulations include an exception to capitalization rules for specific acquisitions, including certain categories of materials and supplies. If you typically expense the purchase price of tangible prop-erty for financial reporting purposes — and follow written accounting procedures for expensing those amounts — the regs permit you to deduct the amount for tax purposes, up to a specific threshold.

The aggregate amount paid and not capitalized must be less than or equal to the greater of 0.1% of the gross receipts for the tax year for income tax purposes or 2% of the total depreciation and amortization expense for the tax year.

Follow the de minimis rule for expensing

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Dispositions of structural componentsThe new regs also include provisions that expand the definition of “dispositions” to include the retirement of a structural com-ponent of a building. That means you now can recognize a loss when you dispose of a structural component before you dispose of the entire building. Previously, you had to continue depreciating amounts allocable to structural components even if they were no longer in service.

Suppose you own an office building with four elevators and decide to replace one. The retirement of the replaced elevator would be considered a disposition under the new regs, so you can stop depreciating the elevator and write off its remaining tax basis.

Materials and suppliesThe regs also modify and expand the definition of materials and supplies. The amounts spent to acquire or produce nonincidental materials and supplies can generally be deducted in the year they’re consumed or used.

The regs define “materials and supplies” as tangible property used or consumed in the taxpayer’s operations that is:

n A component acquired to maintain, repair or improve a unit of tangible property owned, leased or serviced by the taxpayer and that isn’t acquired as part of any single unit of property,

n A unit of property that had an economic use-ful life of 12 months or less, beginning when the property was used or consumed,

n A unit of property that had an acquisition or production cost of $100 or less, or

n Fuels, lubricants, water and similar items reason-ably expected to be consumed within 12 months.

For example, let’s say you own an apartment building and pay for the acquisition and delivery of a new window to replace a broken one. The

new window would be a material or supply because it’s a component acquired and used to repair a unit of property you own and use in your operations. You can deduct the amounts you paid for the acquisition and delivery of the window in the taxable year in which the window is installed.

Your next stepsThe new regs apply to expenditures made on or after Jan. 1, 2012, so they won’t affect your 2011 tax return. Compliance with the regs going for-ward, however, might require changes to your current capitalization procedures and may require you to file IRS Form 3115, “Application for Change in Accounting Method.” Talk to your tax advisor about how to proceed. n

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Cities, businesses and individuals are continuing to catch the “green” fever, increasingly seeking out — and often

happily paying a premium for — properties with Leadership in Energy and Environmental Design (LEED) certification. LEED certification offers independent, third-party verification that a building, home or community was designed and built using strategies aimed at achieving high levels of performance in sustainable site develop-ment, water savings, energy efficiency, materials selection and indoor environmental quality.

Obtaining LEED certification is good not only for the environment but also for your bottom line. It may increase a project’s initial costs, but you’ll recoup your investment as you save on energy costs, charge higher rents or sell for a higher price, and possibly qualify for tax incen-tives and zoning allowances. Before embarking on a green project, look into the expected pay-back period to gauge its feasibility.

Changes over the yearsThe U.S. Green Building Council’s (USGBC’s) LEED certification program has been providing accepted recognition for the construction or renovation of green buildings for more than

a decade. The USGBC itself used to review all submissions for certification. But, as green building became more popular, the USGBC transferred responsibility for LEED certification reviews to the Green Building Certification Institute (GBCI), a nonprofit organization established with support from the USGBC.

When LEED certification began in 2000, the sys-tem had a 69-point system for certification. The current system, LEED 2009, boasts 100 points, weighted by categories that reflect priorities. Cli-mate change and indoor environmental quality have the heaviest weightings, while ozone deple-tion and acidification have the lowest weightings.

Building projects now may qualify for up to 35 points related to protecting the atmosphere and 26 points for creating sustainable sites. Previous LEED ratings allowed only 17 points for protect-ing the atmosphere and 14 for sustainable sites.

With a maximum of 10 points, water efficiency is lowest on the possible point scale, though it’s double the previous 5-point maximum. Materials and resources now qualify for up to 14 points, and environmental quality is unchanged at 15 points. And the four certification categories are still as follows: Certified projects must earn 40-49 points; Silver, 50-59; Gold, 60-79; and Platinum, 80 or more.

Building types that are currently eli-gible for LEED certification include,

LEED-ing the way in green building

A new version of LEED certification goes into effect in November. More types of construction projects can pursue certification under LEED 2012.

but aren’t limited to, offices, retail and service establishments, institutional buildings, hotels, and residential buildings of four or more habit-able stories.

LEED 2012A new version of LEED certification — dubbed LEED 2012 — goes into effect in November. More types of construction projects can pursue certification under LEED 2012, including data centers, warehouse and distribution centers, hos-pitality properties, and existing school and retail projects. Expect increased rigor and revised point distributions under the new plan, although the details won’t be finalized until LEED 2012 has undergone a ballot vote by USGBC membership.

If you’re familiar with LEED 2009 or prefer a less stringent review, consider getting your application

submitted before the new requirements go into effect. Projects that are already LEED certified will continue to follow the version under which they are currently registered.

Making the world a better placeRight now, LEED certification may give you a competitive advantage over comparable properties, but someday it may become the norm, rather than the exception. According to the USGBC, nearly 9 billion square feet of building space is in the suite of rating systems, and 1.6 million feet are being certified each day around the world.

Still, LEED certification can make building or remodeling costs a bit higher. So it’s impor-tant to consider the costs as well as the potential benefits. n

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While most buyers follow the traditional path of directly purchasing real estate, some take a more round-about route:

They acquire the stock of the C corporation that holds the property as its primary asset. This approach comes with several tax pitfalls and com-plications, though.

Issues to considerOwners of a C corporation that holds real estate may prefer to sell the corporation’s stock rather than incur the double taxation that would be imposed if the real estate were sold and the pro-ceeds were distributed to the stockholders. To facilitate a quick transaction, the owners might therefore offer a reduced price if you take on their corporate structure.

Potential purchasers, however, need to look beyond the price. They should consider certain

tax issues that wouldn’t ordinarily arise in a tradi-tional real estate acquisition:

Double taxation. One of the primary disadvan-tages of a C corporation is double taxation. The corporation’s profits are first taxed at the corporate level. Then, if the corporation pays out some of its profits as dividends, the dividend recipients are

C corporation acquisitions: Beware of the tax issues

also taxed. On the flip side, ongoing tax losses — common with real estate activities — can’t be used to offset a shareholder’s other income because the losses are inside the corporation.

It usually isn’t advantageous to convert a C corporation to S corporation status, because of the taxes owners would face on built-in gains. Converting to a limited liability company could also have substantial negative tax consequences, because it would be treated as a liquidation.

Basis. When you purchase a C corporation, the tax basis in its real estate holdings isn’t stepped up to reflect the purchase price, as it would be in a direct purchase (assuming the purchase price was greater than the seller’s basis). While you, as the new owner, have tax basis in your stock equal to your purchase price, the depreciable assets inside the corporation simply continue to be depreciated as they were depreciated before.

Transfer tax. The cost of the deal could be affected by transfer taxes that commonly range from 0.1% to 5.0% of the real estate’s value, depending on the location of the property. Six-teen states and numerous municipalities impose a transfer tax on indirect transfers of ownership in real estate. They don’t require the recording of a deed, change of name or bill of sale.

In such jurisdictions, the mere transfer of a “controlling interest” in a legal entity is considered a taxable transfer of real property. A controlling interest is usually defined as 50% or more of the ownership interests in the entity.

Two general approaches are taken for determining whether a transaction trig-gers the transfer tax. Under the broad approach, the jurisdiction taxes any trans-fer of a controlling interest in an entity that owns real estate in the jurisdiction.

Under the more narrow approach, the jurisdiction taxes transfers of controlling interests only if the entity being trans-ferred was primarily in the business of owning real estate (often determined by comparing its real estate activity with

its total activity). It’s the law of the jurisdiction where the real estate is located that applies, not the law of the jurisdiction of the C corporation’s incorporation or of the purchaser.

Due diligence neededTaxes aren’t the only thing to be concerned about when considering a C corporation acquisi-tion. Also keep in mind that the apparent value of the real estate might be undermined by any pre-existing legal liabilities, such as slip-and-fall claims and tax delinquencies. Those liabilities stay with the corporation — they don’t go with the sellers. This is another reason why purchasing corporate stock can be a negative.

Nevertheless, in certain circumstances, the pur-chase of C corporation stock may produce the best deal. But it will require enhanced due dili-gence and tax planning. Consult with your tax advisor before moving ahead with this type of transaction. n

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It usually isn’t advantageous to convert a C corporation to S corporation status, because of the taxes owners would face on built-in gains.

This publication is distributed with the understanding that the author, publisher and distributor are not rendering legal, accounting or other professional advice or opinions on specific facts or matters, and, accordingly, assume no liability whatsoever in connection with its use. ©2012 REAmj12

Is structured financing right for me?

Ask the Advisor

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Even in the tight credit market, many developers continue to seek financing in the form of debt and equity. But in some circumstances, you may be able to combine different offerings from commercial capital markets, thus maximizing your leverage and minimizing cash equity requirements.

Benefits of structured financingStructured financing arrangements might incorporate a range of financing instruments, including commercial mortgage-backed securities (CMBS), subordinate debt, mezzanine debt, second mortgages, preferred equity structures and credit derivatives. They can address some project-specific needs that conventional financing simply can’t do.

Structured financing can help you work around balance sheet constraints, tap undervalued assets, obtain more leverage at a reduced cost, access equity stuck in single assets or portfolios, shift risk and increase control, and convert nonliquid assets into securities.

For example, an appropriate combination of senior debt, subordinated debt and third-party equity can give you leverage of more than 90% of the total project cost. The increased leverage reduces the amount of equity you must obtain from outside investors and better positions you to control the investment.

Structured financing can also mean greater project ownership. You could, for example, use mezzanine financing to close much of the equity gap and reduce your overall costs of capital.

The critical considerationsStructured financing doesn’t come cheap. Mezzanine financing can cost from 9% to 15% — or more, depending on your leverage and credit. Preferred equity rates are even higher — for example, a 12% to 15% coupon payment plus profit participation.

As you blur the lines between debt and equity financing, you may lose the tax benefits of traditional debt, thereby increasing your after-tax cost of capital. Mortgage interest payments are tax deductible; dividends paid to equity investors are not.

Overleveraged properties that use structured financing may find themselves buried even deeper by these costs. The best candidates for structured financing offer future cash flow sufficient to pay off high yield debt capital.

Other considerations include whether to search for an individual investor or use a more experienced pool of institutional investors. If your needs are only short-term, consider “one-off” financings. Finally, keep in mind that properties financed by Fannie Mae or Freddie Mac may be limited to preapproved providers for structured financing options.

The right circumstancesStructured financing might not be the best option when, for example, cash is readily available or you can easily secure conventional financing. But the benefits make such financing worth considering. Under the right circumstances, it can pay off not only for new construction, but also for acquisition, recapitalization and other business plans. n

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