Does the 5% spend have to happen after the deposit? Can it be late December?

Late December works, as long as it is done by December 31, 2026. The notice says the proposed rules will look at where things stand on that date: at least 10% of the planned capital received by the business and at least 5% spent. Amounts the business must pay under a binding agreement entered into before January 1, 2027 count as spent, so a signed contract can carry the 5%. Leave room for a bank or a contractor to run late.

Can money invested in 2027 go into a project covered by the plan?

Yes, under the rules the IRS has announced it will propose. The notice says fund investments in the business made after 2026 under the plan will be treated as acquired at the right time. That money gets the investment rules in effect when it goes in, including the five-year deferral under OZ 2.0.

What if my tract makes the new map after all?

Then property bought after the new zone's start date on January 1, 2027 can qualify without the plan. Until Treasury certifies your tract, it is safer to have the plan in place by December 31.

Notice 2026-40: The Working Capital Plan Deadline

How do I keep a project going in an Opportunity Zone that isn't on the new map?

If your project sits in an original zone that is not on the new map, new property bought after 2026 generally will not qualify under the rules the IRS has announced it will propose. Notice 2026-40 says those rules will have one main exception: a written working capital plan adopted by December 31, 2026, with at least 10% of the planned capital received by the business and at least 5% spent or under binding contract by that date.

Reviewed by Ashley Tison, attorneyUpdated October 2026How we review answers

Who needs this

Original zones stay designated through December 31, 2028 (December 31, 2027 in Puerto Rico). But Notice 2026-40 says the IRS intends to propose rules under which tangible property bought after December 31, 2026 counts only if it is for use in a zone designated under the new law, or if an exception applies. If your tract did not make the new map, the written plan is how you keep building. As Ashley puts it, "A zone expiring doesn't mean that the deals are dead. It means that the clock is running."

Check your address on the OZ 2.0 map first. If your tract was nominated and certified for 2027, property bought after January 1 can qualify on its own.

The four conditions

Property bought after 2026 in an expiring zone can still qualify if all of these are true:

The business adopted a written working capital plan on or before December 31, 2026.
The purchases are made in a way that is substantially consistent with that plan.
The business received at least 10% of the total working capital in the plan by December 31, 2026.
The business spent at least 5% of that total by December 31, 2026. Amounts owed under a binding agreement signed before January 1, 2027 count as spent.

The notice also says the proposed rules will treat equity a fund buys in the business after 2026 under the plan as acquired at the right time. That lets new money keep coming in to finish the project.

These rules come from IRS Notice 2026-40, which describes regulations the IRS plans to propose. Confirm the current status with your advisor before acting.

What goes in the plan

The regulations ask for three things: money designated in writing for a business in a zone, a written schedule to spend it within 31 months of receipt, and actual spending that is substantially consistent with both. They do not give a template. Ashley's standard for a plan that has to carry a project past 2026:

"This is not a loose one pager. This is not the hand turkey that you made in kindergarten."
Ashley Tison

His guidance on what goes in it:

Name the specific tracts. Three to five, not every tract in the state.
Include the budget and schedule for what you will build.
Include alternatives if the use may change, such as multifamily or flex industrial, each with its own budget.
Remember that you can always end up doing less. You cannot do more than the plan covers.

The money and the math

Because the test is 10% received, the plan can cover up to ten times what is in the business account by December 31. Ashley's rule of thumb from his own deals: a $1.5 million loan into the business can support a $15 million plan. The cash has to actually reach the business account, and the 5% has to be spent or under a binding contract.

Each infusion of working capital gets its own 31-month clock. Start-ups can stack infusions that are part of the same plan for up to 62 months. If your project already started under an earlier plan, your remaining time may be shorter than you think. Map your funding dates before you write the plan.

What the notice does not cover

Expansion. Buying new property to grow into a new product or a new site in an expired zone does not qualify without a plan.
Routine replacements are fine. Windows, appliances, and kitchen upgrades needed to keep running count.
Operating tests. A business already active in an original zone by the end of its designation, or planning to be under a qualifying written plan, would be able to keep treating that zone as a zone for the 50% gross income and intangible property tests through December 31, 2047, under the rules the IRS has announced it will propose.

This is a year-end deadline with no extension. In Ashley's words, "That's a November project, not a December one." If you need a plan, call now. A 15-minute call is enough to see where you stand.