Taxation of real estate investment trusts - definitions

# (1)

# (a)

For purposes of this article, a real estate investment trust shall have the same meaning as set forth in section 856 of the internal revenue code.

# (b)

For purposes of this article, the net income of a real estate investment trust in each year in which the trust is taxed as a real estate investment trust for federal income tax purposes shall be the real estate investment trust taxable income of the trust as computed for federal income tax purposes and adjusted as provided in section 39-22-304 (2) and (3).

# (2)

# (a)

For purposes of this article, a captive real estate investment trust means a real estate investment trust of which the shares or beneficial interests are not regularly traded on an established securities market and of which more than fifty percent of the voting power or value of the beneficial interests or shares are owned or controlled, directly, indirectly, or constructively, by a single entity that is: (I) Treated as an association taxable as a corporation under the internal revenue code; and (II) Not exempt from federal income tax pursuant to the provisions of section 501 (a) of the internal revenue code.

# (b)

A captive real estate investment trust shall not include a real estate investment trust that is intended to be regularly traded on an established securities market and that satisfies the requirements of section 856 (a)(5) and (a)(6) of the internal revenue code by reason of section 856 (h)(2) of the internal revenue code; except that, if such real estate investment trust does not become regularly traded on an established securities market within one year of the date on which it first becomes a real estate investment trust, such real estate investment trust shall be deemed to be a captive real estate investment trust.

# (3)

For purposes of this section, the constructive ownership rules of section 318 (a) of the internal revenue code, as modified by section 856 (d)(5) of the internal revenue code, shall apply in determining the ownership of stock, assets, or net profits of any person.

# (4)

For purposes of this section, unless the context otherwise requires:

# (a)

Association taxable as a corporation under the internal revenue code shall not include: (I) Any real estate investment trust other than a captive real estate investment trust; (II) Any qualified real estate investment trust subsidiary other than a qualified real estate investment trust subsidiary of a captive real estate investment trust; (III) Any listed Australian property trust; or (IV) Any qualified foreign entity.

# (b)

Australian property trust means an Australian unit trust registered as a managed investment scheme under the Australian corporations act in which the principal class of units is listed on a recognized stock exchange in Australia and is regularly traded on an established securities market or an entity organized as a trust, provided that a listed Australian property trust owns or controls, directly or indirectly, seventy-five percent or more of the voting power or value of the beneficial interests or shares of such trust.

# (c)

Qualified foreign entity means a corporation, trust, association, or partnership that is organized outside the laws of the United States and that satisfies the following criteria: (I) At least seventy-five percent of the entity's total asset value at the close of its taxable year is represented by real estate assets as defined in section 856 (c)(5)(B) of the internal revenue code, cash and cash equivalents, or United States government securities; (II) The entity is not subject to tax on amounts distributed to its beneficial owners or is exempt from entity-level taxation; (III) The entity distributes at least eighty-five percent of its taxable income, as computed in the jurisdiction in which it is organized, to the holders of its shares or certificates of beneficial interest on an annual basis; (IV) Not more than ten percent of the voting power or value in such entity is held, directly, indirectly, or constructively, by a single entity or individual, or the shares or beneficial interests of such entity are regularly traded on an established securities market; and (V) The entity is organized in a country that has a tax treaty or agreement with the United States.

# (d)

Qualified real estate investment trust subsidiary has the same meaning as set forth in section 856 (i) of the internal revenue code. Source: L. 64: R&RE, p. 777, § 1. C.R.S. 1963: § 138-1-58. L. 91: Entire section amended, p. 1986, § 2, effective April 20. L. 2009: Entire section amended, (HB 09-1093), ch. 75, p. 269, § 3, effective April 2. Cross references: For the legislative declaration contained in the 2009 act amending this section, see section 1 of chapter 75, Session Laws of Colorado 2009.