Construction allowance in lease agreements need not be for constructing or improving property to satisfy "purpose" requirement.

• Author: Fiore, Nicholas J.

X is in the business of selling tangible personal property to the general public. On Feb. 5, 2001, X and Y signed a 10-year agreement for X's lease of retail space in Y's newly constructed shopping center. The 10-year lease term started March 1, 2001. The lease agreement stated that Y will provide X with a construction allowance in the amount of $1 million for the retail space; it also provides that, to the extent the $1 million construction allowance is spent on qualified long-term real property, it is for the purpose of constructing or improving qualified long-term real property for use in X's business at the retail space located at Y's shopping center.

During X's 2001 tax year, X receives the $1 million construction allowance and spends $800,000 on qualified long-term real property and $100,000 on Sec. 1245 property for the leased retail space located in Y's shopping center. X is permitted to retain any excess over the amount it actually spends improving the retail space.

Analysis

Sec. 61(a) provides that gross income means "all income from whatever source derived" except as otherwise provided in subtitle A of the Code. Sec. 110(a) provides a safe harbor, excluding from gross income any amount received in cash (or treated as a rent reduction) by a lessee from a lessor under a short-term lease of retail space, for the purpose of the lessee's constructing or improving qualified long-term real property for use in the lessee's trade or business at the retail space, but only to the extent that the amount does not exceed the amount expended by the lessee for the construction or improvement (a qualified lessee construction allowance).

Sec. 110(c)(1) defines the term "qualified long-term real property" as nonresidential real property, which is part of, or otherwise present at, the retail space referred to in Sec. 110(a) and which reverts to the lessor at lease termination. Regs. Sec. 1.110-1(b)(2)(i) further defines qualified long-term real property as not including property qualifying as Sec. 1245 property under Sec. 1245(a)(3).

Sec. 110(c)(2) defines the term "short-term lease" as a lease (or other agreement for occupancy or use) of retail space for 15 years or less (as determined under the rules of Sec. 168(i)(3)). Sec. 110(c)(3) defines the term "retail space" as real property leased, occupied or...