FAQ Real Estate Investment Trust Morrison Foerster | 22 Are there any special requirements in order for rents from these leases to qualify? The lodging or healthcare facility must be managed by a third-party contractor that is in the business of managing these properties for others. Additionally, as with any other transactions between a REIT and its TRS, the terms of the lease must be arms-length. What are the REIT distribution requirements? A REIT generally is required to distribute to its stockholders at least 90% of its ordinary taxable income each year. A REIT generally will be subject to corporate income tax on income or gain not currently distributed to its stockholders. As a result, many REITs distribute 100% of their ordinary taxable income each year. When must a REIT make these required distributions? A REIT generally must make these required distributions during the taxable year in which the relevant income is earned. However, there are two circumstances in which a REIT can make such required distributions in the subsequent taxable year: ▪ January Dividends – Any dividends declared in the 4th quarter of a year, payable to stockholders of record on a date during that quarter, and distributed during January of the following year, will be treated, for all purposes, as having been paid on December 31 of the year declared. ▪ Subsequent-Year Dividends – Additionally, a REIT may declare and pay dividends in a subsequent taxable year, and elect to treat such dividends as having been paid in the prior year for purposes of the REIT distribution requirements, provided the dividend is (i) declared prior to the due date for the filing of the REIT’s return for the prior year and (ii) actually paid during the subsequent year, as part of or prior to the first regular dividend payment made after such declaration. These dividends are treated as paid by the REIT in the prior year, but as received by the stockholders in the year actually paid. A REIT will be subject to a 4% excise tax to the extent these subsequent-year dividends exceed the sum of 15% of the REIT’s ordinary taxable income for the prior taxable year, plus 5% of its capital gain net income for such year. Can a REIT satisfy its distribution requirements without making cash payments? ▪ Consent Dividends – A REIT can satisfy its distribution requirements on a non-cash basis with respect to common stockholders who consent to be treated as having received a dividend in a specified amount. Assuming the dividend would have otherwise been qualifying if paid in cash, the REIT will be treated as having actually distributed such dividend on the last day of its taxable year, with a deemed contribution of such dividend by the stockholders back to the REIT. Practically, this option likely is not viable for a public or widely held non-traded REIT. ▪ Stock Dividends – Under certain circumstances, a REIT can satisfy all or a portion of its distribution requirement through the distribution of its own stock. Are there any restrictions on the manner in which these distributions are made? Dividends paid by a REIT, other than a public REIT, must not be preferential as to amount or timing, as between stockholders of the same class of stock, or as between stockholders of different classes of stock, other than pursuant to the dividend rights of each class. Consent dividends, described above, will not be preferential solely because some stockholders consent to such a deemed dividend and others actually receive money or other property. Under what other circumstances can a REIT be subject to Federal income tax? A REIT is subject to a 100% tax on any gain from the sale of property it held for sale in the ordinary course of its business (i.e., dealer property), unless a safe-harbor exception applies (which requires, among other things, that the REIT has held the property for at least 2 years and, if real property, 2 years for the production of income). Additionally, a REIT that acquires built-in gain assets (i.e., assets with a value in excess of basis) from a “C” corporation in certain tax-free transactions generally is subject to tax on the gain recognized on the subsequent disposition of any such asset within 5 years from the date of acquisition.
RkJQdWJsaXNoZXIy NTU5OTQ5