The first provision increases the rate of withholding of tax on dispositions of USRPIs from 10% to 15%, while the second provision states that the so-called “cleansing rule” does not apply to the stock of a corporation if the corporation or any predecessor of the corporation was a regulated investment company (RIC) or REIT at any time during the shorter of (a) the period after June 18, 1980 during which the taxpayer held such stock, or (b) the five-year period ending on the date of the disposition of the stock. 34, these provisions were included in the Senate’s version of the Real Estate Investment and Jobs Act of 2015 (S. 34 which provided that rents from real property and interest do not include amounts that are based on a fixed percentage of receipts or sales, to the extent that such amounts are received or accrued from a single tenant that is a C corporation and the amounts received or accrued from such tenant constitute more than 25% of the total amount received or accrued by the REIT, based on a fixed percentage of receipts or sales.The other provision states that for purposes of determining whether dividends from a foreign corporation are eligible for a dividends received deduction, dividends from RICs and REITs are not treated as dividends from domestic corporations. 915), and two of them were included in former Chairman Camp’s Tax Reform Act of 2014. The law makes numerous other changes to the tax treatment of REITs, and includes provisions that reduce the percentage of REIT assets that may be invested in taxable REIT subsidiaries (TRSs), repeal the preferential dividend rule for publicly offered REITs, treat debt instruments of publicly offered REITs as real estate assets, treat certain personal property that is ancillary to real property as real property for purposes of the asset test, and modify the calculation of REIT earnings and profits to avoid duplicate taxation.Many of these provisions appeared in former Chairman Camp’s Tax Reform Act of 2014.
The biggest revenue raiser in the law is the restriction on tax-free spinoffs involving REITs, which is estimated to generate .9 billion in revenue over the next 10 years.Meanwhile, the provisions resulting in the largest increased expenditures are the new exceptions from FIRPTA for certain REIT stock and for interests held by foreign retirement and pension funds, which together will cost approximately .2 billion over the next 10 years.Aaron Nocjar, a partner in Steptoe’s Washington office, commented, “The REIT rules and the FIRPTA rules have always been at odds with each other.The REIT rules generally were enacted to expand investment in US real estate assets.The FIRPTA rules then were enacted to restrict foreign investment in US real estate, in part as a protectionist reaction to the fear that US real estate (e.g., large swaths of farmland in states that had influential members of Congress) would become primarily foreign-owned over time. 2015-43 that it would ordinarily not rule on any issue regarding whether such transactions qualified for tax-free treatment under section 355 of the Code, and indicated that such transactions were under study in Notice 2015-59.
The FIRPTA-related amendments in sections 322 and 323 of the Act begin to chip away at such protectionist policy.” The following is a more detailed analysis of each REIT provision in the law. Specifically, this provision makes section 355 inapplicable to any distribution if either the distributing corporation or controlled corporation is a REIT.
Section 311 - Restriction on Tax-Free Spinoffs Involving REITs This provision bans the type of spinoff transaction recently completed by companies such as Darden Restaurants Inc. Exceptions exist for spinoffs of a REIT by another REIT and for spinoffs of certain TRSs if (1) the distributing corporation has been a REIT at all times during the three-year period ending on the date of the distribution; (2) the controlled corporation has been a TRS of the REIT at all times during such period; and (3) the REIT has had control (as defined in section 368(c) of the Code) of the TRS at all times during such period.
Introduction The Protecting Americans from Tax Hikes Act of 2015, signed into law on December 18, in addition to making substantial changes to numerous expiring tax provisions, contains 16 provisions relating to tax rules for real estate investment trusts (REITs).
According to estimates from the Joint Committee on Taxation (JCT), the package of REIT provisions will cost approximately billion over the next 10 years. With respect to the REIT spinoff provisions, the law clarifies that the amendments do not apply to any distribution pursuant to a transaction described in a ruling request initially submitted to the IRS on or before December 7, 2015, if the request has not been withdrawn and if a ruling has not been issued or denied in its entirety as of such date.
The law largely retains the text of the REIT provisions in the December 8 bill (H. Additionally, three revenue raisers (sections 324 through 326) were added to the law.
Two of the provisions relate to US real property interests (USRPIs).