‘Huge Victory’ for Sector Seen Mainly in Preserving, Expanding Existing Tax Benefits of Commercial Property Ownership

CRE Industry Groups Applaud Outcome of Tax Bill

‘Huge Victory’ for Sector Seen Mainly in Preserving, Expanding Existing Tax Benefits of Commercial Property Ownership

Senate Majority Leader Mitch McConnell and other GOP leaders took a victory lap after House and Senate approval of major tax reform bill on Wednesday.

Late changes to the Tax Cuts and Jobs Act, the first major overhaul of the U.S. tax code in more than 30 years, further sweetened a deal already loaded with benefits for commercial property owners as earlier concerns gave way to full-throated praise for the final bill Wednesday by groups from virtually every corner of the CRE industry.

The Republican-controlled U.S. House of Representatives gave final approval to the $1.5 trillion legislation Wednesday, sending the bill to President Donald Trump for his signature. The Senate passed the bill by a partisan vote of 51-48 in the early hours, and the House followed suit by approving it for the second time in two days after a procedural mishap forced another vote.

The legislation, which groups including NAIOP and Real Estate Roundtable lauded as “an important victory” in providing an economic boost for the industry, includes such key benefits for commercial property owners as a 20% deduction for income from pass-through entities and partnerships, along with a reduced depreciation schedule for nonresidential properties from 39 years to 25 years, which will allow investors to realize tax benefits on property acquisitions more quickly.

Much of the upside, however, is focused on what will not change in the tax code. The legislation preserves the sale of property through like-kind 1031 tax exchanges. The bill retains and broadens the favorable capital gains tax treatment for carried interest, and contains an exemption for real estate businesses on interest deductibility restrictions. 

Further, the legislation fallows for full and immediate expensing of business assets and capital expenditures, which is intended to incentivize property owners and investors to modernize and upgrade properties.

A complex and last-minute change in the provisions for sole proprietorships, S-corporations and other entities, which pass their income through to their owners and who pay tax at their individual income tax rates, helped seal the deal for recalcitrant lawmakers as Sen. Bob Corker, the Tennessee Republican who ultimately backed the bill he once opposed following the changes to the pass-through provisions in the legislation. 

The bill allows pass-through entities making less than $157,500 ($315,000 for married couples) to take a flat 20% deduction on certain business income before computing the ordinary income tax they would owe. For taxpayers making above that amount but less than $207,500, or $415,000 for married couples, the deduction is gradually phased out.

The late change, through a complex set of rules and calculations, effectively broadens the pool of entities and individuals that will benefit from the 20% deduction. The change is particularly beneficial to owners with few employees but make use of significant leverage for capital investments in depreciable property like buildings and equipment, Pillsbury Winthrop Shaw Pittman LLP attorney Michael Kosnitzky said.

Brushing aside concerns that the new tax bill is projected to add around $1.4 trillion to the deficit over a decade, supporters claim the bill will spark enough economic growth to bring down the total shortfall. Although by most independent estimates, the national deficit would still increase by approximately $1 trillion under the best possible outcome. 

In a statement of supporting the new legislation, Real Estate Roundtable President and CEO Jeffrey DeBoer said the new tax bill will strengthen the economy and spur broad-based growth by reducing barriers to private capital formation and business investment.

“The legislation will also allow our industry to put more people to work modernizing and improving existing properties such as office buildings, shopping centers, apartments and industrial properties,” DeBoer said, adding that the legislation decreases the tax burden on all job-creating business entities, not just C corporations. 

From the apartment and hotel sectors to groups representing the interests of capital markets and historic preservationists, reaction across the CRE industry was swift and almost universally positive. 

The National Multifamily Housing Council and the National Apartment Association said the priorities of the apartment industry were largely addressed in the final bill, which “will help the multifamily industry meet growing demand to build 4.6 million new units by 2030.”

In a joint statement, the American Hotel & Lodging Association (AHLA) and Asian American Hotel Owners Association (AAHOA) said the tax cuts will allow the hotel industry to grow and create more jobs.

“For the past three decades, hoteliers have endured the crushing burden of perpetually increasing tax obligations that stifled growth and job creation,” AAHOA President and CEO Chip Rogers said in a statement on the new tax bill. “This substantial reformation of the tax code presents hoteliers with the opportunity to reinvest in their properties, increase employee wages, develop new businesses and create new jobs.”

The final draft even managed to preserve the Federal Historic Tax credit at 20% following proposals that the credit be scrapped or downsized, which had alarmed some developers and preservationists.

“The inclusion of the historic tax credit as part of the most expansive overhaul of our nation’s tax code in more than three decades is a reaffirmation that reviving older and historic buildings is sound federal policy and good for the nation,” said Stephanie K. Meeks, president and CEO of the National Trust for Historic Preservation.

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