REITwise 2021 Recap

Nareit’s REITwise 2021: Law, Accounting & Finance Conference convened 800 real estate executives and REIT industry professionals this week. The three-day educational program focused on current issues of importance for REITs and publicly traded real estate companies in all areas of legal, financial, tax, and accounting operations. The event attracted attendees from 250 companies, including 140 REITs, and featured 100 panelists.

Video interviews were also conducted with REITwise presenters and sponsors, and can be found online. General session coverage includes:

• REITwise 2021 Panel Explores Changing Nature of REIT Industry: Barclay’s Scott Schaevitz moderated a panel on the state of the capital markets.
• Technology Investment and Digital Transformation a “Necessary Evolution” in Real Estate: The pandemic has accelerated the adoption of certain technologies and forced many executives to begin rethinking how to utilize and leverage real estate.
• KPMG’s Constance Hunter Outlines Economy’s K-Shaped Trajectory at REITwise 2021 Session: Hunter also sees “massive applications” for Blockchain.
• REITwise 2021 Speaker Robert Greene Addresses Broad Benefits of Adopting DEI Strategies: Greene stresses that DEI is about all of us, not some of us.

Read on for a recap of concurrent session presentations, and attendees may access all sessions on-demand through April 30.

REIT Operational Tax Issues

REITwise 2021’s March 23 operational tax issues panel included an exploration by: Jonathan Talansky, partner, King & Spalding; Mario Fulgieri, SVP, tax, Paramount Group, Inc.; and Steve Giordano, principal, Washington National Tax, KPMG; of issues relating to management of REIT taxable income, including through taxable stock dividends, like-kind exchanges, and analysis of the implications of section 163(j)’s interest deduction limitation. Giordano also examined some of the tax issues faced by REITs from “green” incentives and tax increment financing. Ashley Peeper, the panel’s moderator, VP, tax, Xenia Hotels & Resorts, also reflected on some of the issues for lodging REITs in evaluating taxable REIT subsidiary (“RIDEA”) leases in light of the pandemic’s devastating effect on travel over the last year.

Managing the Range of Financial and Non-Financial Reporting

Moderator Michael Walsh, SVP & CAO, Boston Properties, Inc. convened a panel of industry leaders that included Kyle Bolden, US-East Market Segment Leader – Real Estate, Hospitality & Construction, EY, Mneesha Nahata, SVP, Legal & Chief Sustainability Officer, American Tower Corporation, and Sara Neff, Senior Vice President, Sustainability, Kilroy Realty Corporation. This panel focused on how the role of the accountant has expanded from preparing financial information to now include non-financial information. The panel discussed how multiple departments within organizations collaborate to prepare non-financial reporting for many areas required by ESG benchmarks and new SEC rules such as human capital and ensure its validity through a combination of existing financial reporting controls and outside assurance provided by independent third parties.

Emerging Tax Issues

Donna Wagner, EVP, tax, JBG SMITH, and Cristina Arumi, partner, Hogan Lovells, reviewed some of the tax issues for REITs presented by “smart cities” in REITwise 2021’s March 24 panel, dovetailing with the discussion in the immediately preceding “Leveraging Technology to Drive Shareholder and Stakeholder Value” general session. Because of the pandemic, many REITs have experienced losses through closed properties and have assisted tenants with additional safety and distancing-related amenities, rent relief or renegotiating leases. April Ehrenbeit, senior director–tax, SITE Centers, described some of these amenities and their tax implications; Adam Cohen, SVP, tax, iStar Inc. and Safehold Inc., analyzed the tax consequences relevant to Section 467 leases, and Mark Van Deusen, principal, Deloitte, presented some the complex intricacies involving REITs and their use of net operating and net capital losses to offset taxable income and gains.

What’s on the Minds of SEC & FASB Leadership

During this session, Julie Swinehart, CFO, RPAI, spoke with FASB Vice Chairman Jim Kroeker and SEC Deputy Chief Accountant John Vanosdall about the recent leadership changes at the SEC and FASB and their respective priorities as we move past the pandemic through 2021. FASB Vice Chairman Kroeker provided attendees with a status update on projects relevant to the real estate industry, including segment reporting, accounting for joint venture formation, and improving the accounting for business combinations and asset acquisitions.

Issues Tackled by General Counsels

Moderator Samantha Gallagher, general counsel of VICI Properties, convened four other Nareit member REIT GCs—Jim Brat, CTO and general counsel of Four Corners; Kay Tidwell, EVP, general counsel and chief risk officer of Hudson Pacific Properties; Taryn Fiedler, SVP, general counsel and corporate secretary of WashREIT; and Jim Snyder, EVP and chief legal officer of Americold Realty Trust—for a lively discussion of the many novel issues that REIT GCs encountered in the last year. Not surprisingly, much of the discussion focused on issues related to the pandemic and associated shutdowns, including their role as GC in addressing novel health and safety matters, the disparate adverse tenant impacts of the pandemic shutdowns, and matters related to insurance and SEC reporting of COVID impacts. The conversation also focused on human resource issues that arose during the pandemic and the impact of federal programs that affected certain tenants.

Tax Issues for REITs Investing Outside the U.S.

Industry experts Mike Anthony, managing director of Blackstone Real Estate Advisors; Rohn Grazer, managing director, tax of Prologis, Inc.; Lynn Kawaminami, partner, Deloitte LLP; Ana O’Brien, partner, Latham & Watkins; and Jennifer Xiao, SVP, tax, Digital Realty, discussed the tax operational dynamics of international expansion covering topics ranging from tax status of REIT operations in foreign jurisdictions, control procedures for foreign operations relevant to U.S. REIT status, joint venture structuring options, withholding, treaties and transfer pricing. The group also covered many of the evolving tax regimes and information reporting requirements relevant to multinational companies such as ATAD II, OECD Pillar II, DAC 6 mandatory disclosure and the multinational tax proposals on the horizon from the new Administration.

Post-Pandemic Business & Accounting Issues

This session provided information about the complexities in dealing with rent deferrals and rent abatement during the pandemic. The session further discussed the issues in projecting operating results and cash flows without further information on how vaccines will temper the pandemic so that retail store and restaurants can fully open. The panel also shared the significant legal effort in modifying many contracts, including leases and construction contracts.

SEC Legal Update

This panel of experts, which included: Jennifer Marietta-Westberg, principal, Cornerstone Research, and chair of the SEC’s Investor Advisory Committee; Karen Garnett, partner, Proskauer; and David Freed, partner, Mayer Brown, discussed the REIT implications of several major rulemakings that were finalized by the SEC last year. The panel also previewed some developing SEC initiatives and rulemakings that will affect REITs. The panel discussion of key 2020 rule changes, included several rules that are part of the SEC’s ongoing Disclosure Effectiveness Initiative, including the amendments to Reg S-K disclosures, and the amendments to MD&A disclosure. Also raised were recent SEC developments, including the SEC’s March 15 Request for Information on Climate Change Disclosure, the SEC’s recent announcement of an ESG Task Force and its plans to revisit the rules applicable to shareholder proposals.

REIT Tax Conundrums

A variety of REIT tax conundrums were considered at REITwise 2021 in a panel of the same name by: Julanne Allen, principal, National Tax Services, PwC; Jay Blaivas, partner, Morrison & Foerster; Ameek Ponda, partner, Sullivan & Worcester; Lorraine White, partner, Grant Thornton; and moderated by Neal Lewis, SVP, taxation, Duke Realty. Blaivas discussed partnership disguised sale issues when new partners join a previously disregarded partnership while Ponda discussed how to remediate REIT qualification failures. White shared some recent experiences with partnership audits under the Bipartisan Budget Act of 2015 (BBA), and Allen built on the Emerging Issues’ “smart cities” discussion, by exploring the definition of “rent” in the context of new income streams and business arrangements.

Post-Pandemic REIT Corporate Governance Issues

Troy McHenry, EVP, chief legal officer, general counsel and corporate secretary of Healthpeak Properties, Inc., moderated a panel of experts that addressed 2021 corporate governance developments from four different perspectives. The Biden Administration’s “all of government” focus on climate change includes a number of important SEC climate change disclosure and related ESG initiatives, which Evan Williams, director at Center for Capital Markets Competitiveness of the U.S. Chamber of Commerce, outlined for the panel. Scott Fenster, EVP and general counsel of Equity Residential, described EQR’s highly organized approach to ESG and DEI initiatives, which probably could be described as an “all of company approach,” because EQR incorporates executives from several corporate departments in its efforts and couples these with rigorous board oversight. Jim Hanks, partner at Venable, updated the panel on several 2021 proxy season issues important to all Maryland REITs. Donna Anderson, head of corporate governance of T. Rowe Price Associates, Inc. sketched out the perspective and expectations of REIT investors in 2021, noting that REITs are doing pretty well this year.

PCAOB & SEC Non-legal Update

Moderator Ermelinda Berberi, SVP & CAO, Paramount Group, Inc. convened a panel of experts that included Catherine Ide, VP, Professional Practice, The CAQ, Brandon Landas, Partner – National SEC Department, BDO, and Robert Ravas, Associate Chief Auditor, PCAOB. During the session, the panel discussed a multitude of topics including the reporting Critical Audit Matters (CAMs) in audit reports for the real estate industry, recent regulatory updates at the SEC and SEC comment letters trends. The panel discussed the SEC’s recent response to climate and ESG risks and opportunities, including the SEC’s request for information on Climate Disclosure, and the IFRS Foundation’s Consultation Paper on Sustainability Reporting. The panel also covered recent standard setting at the PCAOB and how the PCAOB responded to the pandemic by modifying the timing and scope of its reviews of audits of public companies.

Watch video interviews from REITwise 2021: Nareit’s Law, Accounting & Finance Conference: