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January 26, 2021 at 6:00 am · · Comments Off on Focusing on the Adaptability and Resiliency of Maine, MEREDA Brings Real Estate Experts Together to Forecast the Future

Focusing on the Adaptability and Resiliency of Maine, MEREDA Brings Real Estate Experts Together to Forecast the Future

On Thursday, January 21, over 500 of Maine’s real estate and development professionals gathered virtually to learn about the latest insights on the real estate economy at the Maine Real Estate & Development Association’s (MEREDA’s) annual Forecast Conference and Member Showcase. “This is an event people look forward to every January.  You learn a lot and you make important connections.  This year, we connected in new ways and heard about the incredible work that is being done throughout our state to move Maine forward, and to begin to recover from the pandemic economy,” says Josh Fifield, MEREDA President.

From James Marple, a Senior Economist at TD Bank who provided an economic outlook; to Hannah Pingree, Director of the Governor’s Office of Policy Innovation and the Future who spoke about the Maine Climate Council; to an impressive lineup of industry leaders; speakers were brought together for a virtual conference produced at O’Maine studios following Covid safety protocols.  MEREDA streamed the conference with hosts Shannon Richards of Hay Runner and Craig Young of The Boulos Company providing commentary and connectivity throughout the day.

Reflecting on a challenging year, presenters were tasked with looking ahead and reporting on the trends impacting their sectors.  In navigating the uncertainty of our current times, it seemed everyone was looking for bright spots.  Perhaps one of the hardest hit sectors in Maine has been the hospitality industry.  Sean Riley of the Maine Course Hospitality Group spoke about how they’ve had to adapt this past year, providing rooms for medical professionals and extended stay options for construction workers.  While it has been a devastating year, Riley predicts that Maine hotels will rebound faster than the projected 5-year national recovery scenario laid out by Smith Travel Research.  “Everybody is tired of staying home.  We think Maine is teed-up big time.”  With optimism and heart at the center of his presentation, Riley ended by encouraging collaboration and camaraderie: “We have to spend our time lifting each other up.”

Reporting on the retail industry, another sector hard hit by the pandemic, Peter Harrington of Malone Commercial Brokers outlined some of the surprise success stories in retail: from hardware stores to take-out restaurants to athleisure-wear retailers to furniture companies.  While Maine will likely continue to feel impacts of the pandemic through 2021, Harrington saw hope for brick-and-mortar retail to rebound: “We haven’t evolved to be people who sit at home in isolation.  We need physical connection to each other and many of the products we use.”

On the other side of the spectrum was the residential real estate market, which had an incredible year.  Dava Davin of the Portside Real Estate Group reported a record 13.8% increase in Maine home prices and $7 billion in total sales.  While a lot of activity continues to be centered in Portland, Westbrook saw its largest home sale ever in 2020 with a $1,000,000 single family home.  With 33% of buyers from away, Davin questioned how long these new residents will stay in Maine, and how many winters they can weather.  It is something she plans to keep her eye on for the future.

Areas outside of Portland, like Biddeford, Saco, and Brunswick saw growth in 2020 as well and are predicted to continue to see development in 2021.  Dave Holman gave a report on the Midcoast market, highlighting Brunswick Landing, a former Navy Base.  This site has been an incredible driver of innovation and growth for the area, having created some 2,200 jobs for the region and attracted both residential and commercial future development projects.  While low industrial inventory and construction costs present some challenges to development in the Bangor area, Bev Uhlenhake of Epstein Commercial Real Estate echoed that there are also opportunities that exist in this new landscape: as more and more people work from home, why not decide to work from a beautiful place like Maine.

Justin Lamontagne of NAI The Dunham Group reflected in his Industrial Forecast, “There is no larger barrier to commercial real estate than uncertainty.”  While the uncertainty of the past year was a barrier and challenge for many Mainers, there were pockets of opportunity throughout the state.  Lamontagne saw hope for the industrial sector as Maine-based companies pivoted to produce life-saving equipment and companies like IDEXX, Puritan, and Abbott Labs demonstrated the future possibilities of Life Science companies and manufacturing in Maine.  It was also another example of how Maine businesses showcased adaptability and resilience in the face of a devastating economy and pandemic.  While there is still much work to be done, MEREDA and its members have their sleeves rolled up to work together and build Maine’s brighter future.

January 14, 2021 at 3:00 pm · · Comments Off on Sneak Peek! What to Expect from MEREDA’s 2021 Forecast Conference & Member Showcase!

Sneak Peek! What to Expect from MEREDA’s 2021 Forecast Conference & Member Showcase!

What can you expect from MEREDA’s 2021 Virtual Forecast Conference & Member Showcase?

  • We have 20 MEREDA members taking part in our Virtual Member Showcase
  • As usual, the Forecast Conference will deliver the same quality information that our members have come to expect over the years.
  • Our Platinum and Gold Sponsors will be highlighted in interview-style 90 second promos
  • The event is approved for 4 hours of broker and legal continuing education credits
  • We’re excited to have Craig Young from The Boulos Company and Shannon Richards of Hay Runner participating as MC’s for the day.  They’ll help keep things energetic and exciting!

Check out our promo below and then Register here: https://mereda.ticketspice.com/2021-annual-forecast-conference-virtual

On the morning of the conference, we will post the presenter materials for you to download on MEREDA’s website located at https://mereda.org/resources/documents/.

 

January 7, 2021 at 2:29 pm · · Comments Off on Maine’s Leading Real Estate Experts Look to the Future with a Virtual Conference on January 21, 2021

Maine’s Leading Real Estate Experts Look to the Future with a Virtual Conference on January 21, 2021

PORTLAND, Maine–On Thursday, January 21, 2021, leaders from Maine’s real estate industry will take part in a virtual presentation of the Maine Real Estate & Development Association’s (MEREDA’s) Annual Forecast Conference and Member Showcase, sponsored by TD Bank.  As we begin a new year, recovering from a devastating 2020 is on the forefront of everyone’s mind.  The real estate industry, a significant driver of the Maine economy, is a bright spot with future growth potential.  The MEREDA Forecast Conference provides an opportunity for industry leaders to share their insights on what trends and challenges have been impacting real estate in Maine, and what economic opportunities exist for Maine to begin to rebuild its economy.

“I continue to be impressed by MEREDA members and the work they do in our communities to propel Maine forward,” said Josh Fifield, President of MEREDA and a Senior Account Executive at Clark Insurance.

“I can’t think of a better way to begin a dialogue about the future of the Maine economy than by having some of the best minds in real estate share their perspectives on the industry.  Although we cannot be together in the same room, the Forecast Conference is an event where important conversations like these can still take place,”  continued Fifield.

MEREDA’s Annual Forecast Conference is geared towards builders, developers, brokers, attorneys, architects, engineers, municipal leaders, bankers, and accountants, to name a few.  Continuing Education credits are available for brokers and attorneys.

According to Shelly R. Clark, MEREDA’s Vice President of Operations, MEREDA’s Forecast Conference will be produced at O’Maine Studios following strict CDC health and safety guidelines and will be streamed on January 21 from 9am to 4pm.  Registration is available at https://mereda.ticketspice.com/2021-annual-forecast-conference-virtual 

 

December 29, 2020 at 6:00 am · · Comments Off on Maine market snapshot: “Bump in the road” is a sign most Mainers have seen many times before

Maine market snapshot: “Bump in the road” is a sign most Mainers have seen many times before

by:  Sam LeGeyt, Broker, NAI The Dunham Group

“Bump in the Road” is unfortunately a sign that most Mainers have seen many times before. As Mainers we’re not uncomfortable with it, because we know that things in Maine rarely swing too far from our realm of comfort. Although there are certainly uncomfortable situations ahead, most likely in the office and retail markets, hopefully they are just bumps in the road and not major detours.

Industrial

The Maine industrial market continues to burn very HOT! Vacancy is still quite low (~2%) and lease pricing remains on the rise with new construction options topping the market around $12 per s/f NNN.

With strong online retail sales and a commitment to replenish stockpiles of inventory, materials and equipment, industrial real estate demand is steady on both the leasing and sales side.

Smaller tenants (10,000 s/f and under) are struggling to find new space prior to current expiration dates. I completed an inventory search for a client just yesterday looking for 3,000-5,000 s/f in Northern York and Southern Cumberland County and only three results populated in both for sale or for lease options. This trend is leading tenants to renew in place at much higher rents since their most recent renewal.

Sales pricing in Southern Maine is still tipping the scales at around $100 per s/f for quality class A product. Both owner users and investors are still fighting for deals and although credit scrutiny has tightened, we are still seeing owner users win deals using both traditional and SBA-504 financing.

Office

The office market in Southern Maine is on the brink of a turning point. The final impact of this pandemic is, of course, impossible to know today. However, when we look around at parking garages in downtown Portland, most aren’t even half full during a normal week day. In early February there were waiting lists in almost every single garage and lots downtown, and the lack of available parking was a major impediment of doing office deals. In late 2019 and early 2020 we saw a couple of big users sign leases in the suburbs for this reason.

The pandemic has dramatically shifted that trend. Some office users are excited to get back to the office, and some are very content to continue to work from home. But the bottom line is that long-term decision making is proving very difficult for business leaders. As a result, we are seeing a shift of leverage from landlord’s to tenant’s. Good office tenants will be held in higher regard and value as we move forward and any tenant willing to sign a long-term lease will find even more value with an educated landlord. I expect tenants to be able to demand concessions (TI allowances, free rent, etc.) that they haven’t in years, if they can prove to be a financially sound and viable tenant.

Although there is a change in leverage, we have yet to see pricing drop in the office market. Given the conditions, however, I think it’s fair to assume that will change soon.

Retail

Retail tenants are struggling locally and the uptick in online sales is hurting foot traffic for all retailers and restaurant users. Although bars and pubs are very recently allowed to reopen in Maine under Phase 4 of the reopening plan, allowed occupancies are down. And the weather is turning to winter, which will shut down outside dining that has been holding up many of our local favorites.

We very well may see a cultural change in the city of Portland and Southern Maine. With an easily walkable downtown and exciting waterfront, Portland is a city that draws tourists for food and drink style vacations. Depending on how the winter goes we may cease to have as many food and drink options as we did previously.

Not only is COVID-19 impacting these local retailers, restaurants and bars, but political questions appearing on the ballot in Portland may also have negative effects on the retail and food service industries. Particularly concerning is a $15/hour minimum wage proposal that would also require business owners to pay time and a half whenever the city or state declares a state of emergency. This proposal will very likely hurt the small businesses it set out to help.

Multifamily

Multifamily sales and opportunities in Southern Maine are still attracting investors from all over the country. Sales on four-unit buildings or less continue to move quickly as we see more and more people moving here for the quality of life and seemingly easier urban COVID-19 lifestyles versus that of a New York, Washington D.C. or Boston. The number of larger deals (4 units and over) has slowed over the past year due to a lack of inventory, although demand is still high. Lease pricing is mostly flat, although there is a flight to quality products, with most demand coming from new Mainers.

In Southern Maine we have much to be thankful for and many opportunities to be looking out for as we approach the holiday season. At the same time we have to prepare for the likely bump in the road ahead for many of us.

Sam LeGeyt is a broker on the industrial team at NAI The Dunham Group, Portland, ME.

Original article published on October 30, 2020, https://nerej.com/maine-market-snapshot-bump-in-the-road-is-a-sign-most-mainers-have-seen-many-times-before-by-sam-legeyt

 

December 15, 2020 at 6:00 am · · Comments Off on Residential Evictions and the Pandemic – Landlords Beware

Residential Evictions and the Pandemic – Landlords Beware

NOTE: This article addresses the Executive Orders, Pandemic Management Order, and CDC Order in effect on November 3, 2020. As the pandemic changes, these orders are all subject to change and this information may become outdated. Confer with your attorney when considering evicting a tenant to ensure compliance with the latest orders.

By: Bodie Colwell, Attorney with Preti Flaherty’s Creditors’ Rights & Bankruptcy Practice Group

Maine Executive Orders Relating to Evictions

On July 30, 2020, Governor Janet T. Mills signed an executive order extending the notice periods that must be given to tenants under the Maine eviction statute, 14 M.R.S. 6002. Specifically, for non-payment of rent, tenants must be given 30 days’ notice to terminate the tenancy. To terminate an at-will tenancy, tenants must be given 45 days’ notice. The 30-day notice for non-payment significantly increases the usual notice period (7-days) and may come as a surprise to many landlords.

Maine Court FED Procedures

While the state of emergency continues, landlords will need to file additional forms and provide information to tenants when commencing an eviction or forcible entry and detainer (“FED”) proceeding.  Along with the complaint, the landlord needs to include a copy of pandemic order PMO-SJC-6 (as revised on November 3,2020), a copy of the FED Information Sheet which includes details on what to expect at the hearing, and a copy of Instructions for Accessing a Court Hearing Using Google Meet.  If the landlord fails to provide the required information and forms, the court may dismiss the FED proceeding.

Additionally, there is a new procedure for FED process. The whole process from sending the initial notice to the final hearing will take more time than usual. First, there is a telephonic or video status conference. Then, the parties may participate in mediation (which can be held over video conference).  Last, the final hearing which is held in person at the courthouse. If the landlord fails to appear at the final hearing, the eviction action may be dismissed with prejudice—requiring the landlord to wait for another month of non-payment and start the whole process again.  If the tenant fails to appear and the landlord can show that the eviction is not prohibited by federal moratoria on evictions, the court may enter the FED judgment in favor of the landlord.

This procedure applies to eviction proceedings through December 31, 2020 and may be extended by court order. More information on this process is available here:

https://www.courts.maine.gov/covid19/pmo-sjc-6-rev1120.pdf

CDC Moratorium on Evictions

On September 1, 2020 the federal CDC has issued an order halting certain residential evictions. The order is currently in effect runs through December 31, 2020 (if it is not extended). The intent is to prevent evictions for non-payment of rent. The CDC order does not prohibit evictions based on (1) criminal activity by the tenant; (2) threatening health or safety of other residents; (3) damaging property; (4) violating a building code; or (5) violating any other contractual obligation (other than payment of rent) contained in the rental agreement.

The order covers any tenant that submits a declaration to their landlord. Tenants must swear that they are under an income threshold, are unable to pay full rent, and are using best efforts to make timely payments that are as close to full payment as possible. The declaration also requires that the tenant make under $99,000 a year in income, and that if evicted they would likely become homeless, need to move into a shelter or need to move into a new residence shared by other people who live in close quarters.

In order to be protected from eviction under the order, the tenant is required to submit the declaration to the landlord.  If you receive a declaration from a tenant, confer with your attorney before taking any action. There are stiff penalties for landlords who pursue eviction against a covered tenant.

Alternatives to Eviction

If the process is too slow and burdensome, landlords may consider the alternatives to bringing a FED proceeding. Namely, landlords may find coming to an agreement with a tenant and offering cash-for-keys will save the expense and time related to a FED proceeding. In that situation, the landlord may find that getting a new tenant into the property sooner is worth paying the former tenant to leave.

Bodie Colwell is an attorney with Preti Flaherty’s Creditors’ Rights & Bankruptcy practice group. Bodie helps banks and businesses recover money owed to them and represents businesses in financial distress both in and out of court.

Original article published October 23, 2020, https://www.preti.com/publications/residential-evictions-and-the-pandemic-landlords-beware/ 

December 3, 2020 at 2:08 pm · · Comments Off on Maine Real Estate & Development Association (MEREDA) Names DevelopME Committee Co-Chair

Maine Real Estate & Development Association (MEREDA) Names DevelopME Committee Co-Chair

PORTLAND, Maine (January 8, 2021) The Maine Real Estate & Development Association (MEREDA) is pleased to announce that Portland resident Benjamin Brennan, Sales Executive for KONE Elevators, has been named as co-chair of its DevelopME Committee.  Since 2017, the DevelopME Committee has worked to engage the membership and create professional development opportunities within MEREDA for the next generation of industry professionals.

As a Sales Executive for KONE Elevators, located in Westbrook, ME, Ben is responsible for new equipment business development & project management and partners with stakeholders of new and existing real estate developments.   From providing AIA continuing education, design assistance and pre-construction services to ensuring smooth transition through all stages of project execution, Ben is involved throughout a project’s life cycle.

A graduate of the University of Maine, Ben was hired in 2013 by KONE to deliver energy efficient elevator solutions to the Northern New England market.  As a green energy advocate, Ben’s interests lie in finding a medium between green technology & affordability. Ben also serves on MEREDA’s relatively new Local Issues Committee.

“Ben brings a lot of enthusiasm and energy to the committee,” says Shelly R. Clark, Vice President of Operations for MEREDA.   “We are excited to have Ben step into this role and serve alongside co-chair Cameron Woodford of LIHC Investment Group, and we look forward to working with them in the coming year.”

December 1, 2020 at 8:00 am · · Comments Off on Residential Evictions and the Pandemic – Landlords Beware

Residential Evictions and the Pandemic – Landlords Beware

NOTE: This article addresses the Executive Orders, Pandemic Management Order, and CDC Order in effect on November 3, 2020. As the pandemic changes, these orders are all subject to change and this information may become outdated. Confer with your attorney when considering evicting a tenant to ensure compliance with the latest orders.

By: Bodie Colwell, Attorney with Preti Flaherty’s Creditors’ Rights & Bankruptcy Practice Group

Maine Executive Orders Relating to Evictions

On July 30, 2020, Governor Janet T. Mills signed an executive order extending the notice periods that must be given to tenants under the Maine eviction statute, 14 M.R.S. 6002. Specifically, for non-payment of rent, tenants must be given 30 days’ notice to terminate the tenancy. To terminate an at-will tenancy, tenants must be given 45 days’ notice. The 30-day notice for non-payment significantly increases the usual notice period (7-days) and may come as a surprise to many landlords.

Maine Court FED Procedures

While the state of emergency continues, landlords will need to file additional forms and provide information to tenants when commencing an eviction or forcible entry and detainer (“FED”) proceeding.  Along with the complaint, the landlord needs to include a copy of pandemic order PMO-SJC-6 (as revised on November 3,2020), a copy of the FED Information Sheet which includes details on what to expect at the hearing, and a copy of Instructions for Accessing a Court Hearing Using Google Meet.  If the landlord fails to provide the required information and forms, the court may dismiss the FED proceeding.

Additionally, there is a new procedure for FED process. The whole process from sending the initial notice to the final hearing will take more time than usual. First, there is a telephonic or video status conference. Then, the parties may participate in mediation (which can be held over video conference).  Last, the final hearing which is held in person at the courthouse. If the landlord fails to appear at the final hearing, the eviction action may be dismissed with prejudice—requiring the landlord to wait for another month of non-payment and start the whole process again.  If the tenant fails to appear and the landlord can show that the eviction is not prohibited by federal moratoria on evictions, the court may enter the FED judgment in favor of the landlord.

This procedure applies to eviction proceedings through December 31, 2020 and may be extended by court order. More information on this process is available here:

https://www.courts.maine.gov/covid19/pmo-sjc-6-rev1120.pdf

CDC Moratorium on Evictions

On September 1, 2020 the federal CDC has issued an order halting certain residential evictions. The order is currently in effect runs through December 31, 2020 (if it is not extended). The intent is to prevent evictions for non-payment of rent. The CDC order does not prohibit evictions based on (1) criminal activity by the tenant; (2) threatening health or safety of other residents; (3) damaging property; (4) violating a building code; or (5) violating any other contractual obligation (other than payment of rent) contained in the rental agreement.

The order covers any tenant that submits a declaration to their landlord. Tenants must swear that they are under an income threshold, are unable to pay full rent, and are using best efforts to make timely payments that are as close to full payment as possible. The declaration also requires that the tenant make under $99,000 a year in income, and that if evicted they would likely become homeless, need to move into a shelter or need to move into a new residence shared by other people who live in close quarters.

In order to be protected from eviction under the order, the tenant is required to submit the declaration to the landlord.  If you receive a declaration from a tenant, confer with your attorney before taking any action. There are stiff penalties for landlords who pursue eviction against a covered tenant.

Alternatives to Eviction

If the process is too slow and burdensome, landlords may consider the alternatives to bringing a FED proceeding. Namely, landlords may find coming to an agreement with a tenant and offering cash-for-keys will save the expense and time related to a FED proceeding. In that situation, the landlord may find that getting a new tenant into the property sooner is worth paying the former tenant to leave.

Bodie Colwell is an attorney with Preti Flaherty’s Creditors’ Rights & Bankruptcy practice group. Bodie helps banks and businesses recover money owed to them and represents businesses in financial distress both in and out of court.

Original article published October 23, 2020, https://www.preti.com/publications/residential-evictions-and-the-pandemic-landlords-beware/ 

November 25, 2020 at 2:29 pm · · Comments Off on REGISTRATION IS OPEN! January 21, 2021 – MEREDA’s Forecast Conference & Member Showcase – Virtual Edition

REGISTRATION IS OPEN! January 21, 2021 – MEREDA’s Forecast Conference & Member Showcase – Virtual Edition

Join us and the top minds in real estate for MEREDA’s 2021 Annual Forecast Conference and Member Showcase on January 21, 2021.

This will be a virtual event, with many unique opportunities to engage the virtual audience! As usual, our 2021 Forecast Conference will deliver the information that is so valuable to MEREDA Members. Attendees will once more learn what is influencing the various sectors of real estate across Maine. We’ve developed a format to ensure a dynamic conversation to kick of 2021.

Check out our Exciting Sponsorship and Exhibiting opportunities here, and contact the MEREDA office by December 17!

Registration is open!    Clicking this link will take you outside of MEREDA’s website.  

This course has been approved for 4.00 hours of Legal Continuing Education Credits.  Approval is Pending for Broker Credits.

November 24, 2020 at 6:06 am · · Comments Off on The State of Retail: Permanently Damaged or Poised for a Comeback?

The State of Retail: Permanently Damaged or Poised for a Comeback?

by:  Joseph Italiaander, Associate, The Boulos Company

Among other things, 2020 has provided plenty of alarming headlines surrounding the state of the retail market. Perhaps what stands out the most to me is the growing number of bankruptcies among some of the country’s most established brands, including: J.C. Penney, Neiman Marcus, GNC, Lord & Taylor and Stein Mart. As a result, these filings have contributed to a growing number of vacancies, along with softening retail rents at many of America’s malls and shopping centers. These circumstances alone could make the case that retail is trending in the wrong direction, and the ‘light at the end of the tunnel’ is nowhere in sight…

But there have also been glimmers of hope in 2020 – Retailers like Home Depot and Lowe’s have reported double-digit growth in net sales year over year as a result of the home improvement boom spurred by the pandemic.

Similarly, cornerstone retailers like Target and Walmart have poured millions of dollars into technology adaptation, establishing a stronger online presence and enhanced customer loyalty programs. Both reported Q2 2020 earnings well above the Wall Street Earnings-Per-Share estimate. Additionally, Target has continued to expand its’ real estate footprint during the pandemic – including two new high-profile store leases signed in Manhattan.

Target isn’t the only retailer actively growing during this time. Here in Greater Portland, we recently saw the completion and grand opening of Market Basket’s new 80,000 square foot Westbrook location at Rock Row – which reported a whopping first-week revenue of $1.9m and welcomed customers who traveled from all over Maine to visit the store.

My belief is that the COVID-19 pandemic did not create problems for America’s struggling retailers, but rather expedited them. Groups like J.C. Penney and Stein Mart were never willing to invest in and adopt a true omni-channel presence like many of their now-thriving competitors, and thus had been paying the price for many years. Going forward, I believe that we will continue to see impressive growth from innovative and forward-thinking brands. Additionally, I think that we will see the emergence of new retail concepts that are capable of true long-term success.

So, will retail go the way of the dinosaurs? Or is the sector poised for a comeback?

Original article published on September 21, 2020, https://boulos.com/the-state-of-retail-permanently-damaged-or-poised-for-a-comeback/

 

November 17, 2020 at 7:00 am · · Comments Off on Business Interest Limitation Modifications

Business Interest Limitation Modifications

By Josh Lapierre, CPA, MBA, Senior Manager, Baker Newman Noyes

April 1, 2020

Updated as of April 14, 2020

This article was updated on April 14 to include provisions in Revenue Procedure 2020-22, which allows for a qualifying taxpayer to make a late election or withdraw an election to be treated as an electing real property trade or business or electing farm business for purposes of the business interest limitation. The notice also describes the timing and manner in which a taxpayer elects to utilize the benefits related to business interest limitation under the CARES Act.

As part of the major tax reform signed into law late December 2017, commonly known as Tax Cuts and Jobs Act (TCJA), certain businesses were required to limit their business interest deduction. (For a more detailed discussion, read this article: New Limitation on Interest Deductions for Businesses.) In general, the limitation disallows any interest expense that is in excess of 30% of adjusted taxable income plus business interest income. Adjusted taxable income for tax years 2018 through 2021 is taxable income increased by interest expense, depreciation, amortization, and depletion and excludes any item not allocable to the business. Beginning in tax years 2022, depreciation, amortization and depletion are not added back for purposes of computing adjusted taxable income. Any disallowed interest is carried forward indefinitely. The limitation is not applicable to certain small businesses.

The CARES Act makes two favorable modifications to the business interest limitation. First, the 30% is increased to 50% of adjusted taxable income for years beginning in 2019 or 2020. A partnership cannot use the increased 50% of adjusted taxable income for the 2019 tax year and must continue to use the existing 30% limit. For partners that were allocated disallowed interest in 2019 from a partnership, unless they elect out, in 2020 the partner will be able to deduct 50% of the limited interest and the other 50% will be subject to the existing rules. The second modification, and maybe of greater benefit, is for tax year 2020: The bill allows businesses to elect to use their 2019 adjusted taxable income to calculate their 2020 business interest limitation. This will be very beneficial for many businesses that are subject to the interest limitation and had endured negative economic impact in 2020. For short taxable years in 2020 the 2019 adjusted taxable income must be prorated by the number of months in the short taxable year over twelve. This modification will allow many suffering businesses to deduct more interest expense than prior law would have allowed. This additional interest expense may result in a greater tax loss and with the CARES Act’s new modification of net operating loss rules, will allow taxpayers the potential carryback of the loss to receive a refund based on the higher federal tax rate that applied prior to TCJA.

Revenue procedure 2020-22 gives businesses much needed relief and flexibility for making or revoking the election to be an electing real property trade or business or electing farm trade or business for the business interest limitations purposes. A taxpayer that wishes to revoke the election made on an originally filed return or wishes to make the election not made on the originally filed return for 2018, 2019, or 2020 will do so by filing an amended federal income tax return (or amended Administrative Adjustment Request (“AAR”) for certain partnerships). The amended return must include a statement and make the necessary adjustments for all returns impacted from the change. The amended return making or revoking the election must be filed by October 15, 2021. This provides businesses with much needed flexibility when considering the new changes to the tax life of qualified improvement property. An electing real property trade or business will be unable to take bonus depreciation on the qualified improvement property unless any existing election is revoked.

Revenue procedure 2020-22 also provides guidance related to the changes made by the CARES Act to the business interest limitation calculations. First, the guidance provides the timing and manner of how to elect out of using the 50% of adjusted taxable income for 2019 and 2020. For partnerships subject to the rules they may only elect out of the 50% limitation in 2020 because they must continue to use the 30% limitation in 2020. That election may be made on an amended tax return or amended AAR for certain partnerships. The election out is an annual election for 2019 and 2020. Second, partners in a partnership can deduct 50% of any excess business interest expense in 2020 carried over from 2019 unless the partner makes the election out. Third, a business may elect to utilize the 2019 adjusted taxable income for calculating the business interest limitation in 2020 simply by doing so (a separate election statement, etc., is not required). The election can be made on an amended 2020 tax return. Additional guidance is expected in the form of section 163(j) proposed regulations.

These changes related to the business interest deduction will provide more flexibility and less limitations for many businesses at a time when cash flow is crucial. 2019 returns already filed should be reviewed to consider any impact these changes may have. An amended return may be necessary and beneficial for the business and its owners. The bill does not address any other certain features of §163(j), such as the tax shelter rules which require tax syndicates to apply the business interest limitation rules regardless of the size of the company. The bill addresses short taxable years in 2020 but it does not discuss certain transaction such as a corporation joining or leaving a consolidated group or certain other M&A transactions.

For more information, please contact your BNN tax advisor at 800.244.7444.

Original article published April 1, 2020, https://www.bnncpa.com/resources/business-interest-limitation-modifications/