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Understanding LIHTC: A Comprehensive Guide to Low-Income Housing Tax Credits

Learn about the background, requirements, allocation plans, evaluation process, and key business terms of the LIHTC program. Discover how to navigate the timeline and calculate credits for low-income housing projects.

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Understanding LIHTC: A Comprehensive Guide to Low-Income Housing Tax Credits

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  1. IPED HOUSING TAX CREDITS “101”San Francisco, CaliforniaJuly 24-25, 2008Molly R. BrysonThomas A. Giblin

  2. Background • Part of 1986 Tax Reform to Encourage the Construction and Rehabilitation of Low-Income Rental Housing • Administered by the Treasury Department and Allocated by State Agencies • Contained in Section 42 of the Tax Code • Emphasis on Private Sector Involvement (i.e. Developing and Managing Projects) • Objective: To Provide Investor Equity to Lower Debt Service, Thereby Lowering Rents • Credit is a Dollar-for-Dollar Tax Reduction • Credit Amount Based on the Cost of Constructing or Rehabilitating Housing Developments

  3. Program Requirements • Minimum Percentage of LIHTC Units (20/50 or 40/60) • Minimum 30-Year Affordability Commitment • Maximum Rents Limited for LIHTC Units • Maximum Income Limited for Households Renting LIHTC Units • Projects Subject to IRS and State Regulation/Compliance

  4. State Allocation Volume Limit • Credits Are Limited • In 2000, Congress Raised Cap from $1.25 to $1.50 in 2001, $1.75 in 2002, and Thereafter Adjusted for Inflation • $2.00 Per Person for 2008 • $2,325,000 State Minimum in 2008

  5. Volume Limit Rules • Example: • State With Three Million Population Has $6,000,000 in Credits in 2008 • Allocated Amount is for One Year of Credit • 10% Nonprofit Set-Aside • 50% Test: Private Activity Tax-Exempt Bonds Subject to Bond Volume Cap; No Credit Allocation Needed

  6. Qualified Allocation Plans • State Must Adopt QAP to Allocate Credits • QAP Must Set Forth Allocation Priorities • QAP Must Give Preference To: • Lowest Incomes • Longest Period of Low-Income Use • QCT Projects Contributing to a Concerted Revitalization Plan • QAP Must Provide Procedure for Notifying IRS of Non-Compliance • Bond Financed Projects Must “Satisfy” QAP

  7. Project Evaluation • Credit May Not Exceed Amount State Agency Determines Is Necessary for Feasibility and Viability • Agency Must Consider: • Sources and Uses • Amounts Expected to Be Generated by Tax Benefits • Reasonableness of Development and Operating Costs

  8. Project Evaluation (Cont’d) • Evaluation Occurs at Application, Allocation and Completion • Owner Must Certify as to Amount of Subsidies • For Tax-Exempt Bond Financed Projects, Issuer Must Make Similar Evaluation • Agency Must Require Market Study Paid by Developer

  9. Industry Participants • Congress • IRS/Department of Treasury • State Tax Credit Agencies • Developers/Owners • Property Managers • Syndicators/Investors • GSEs • Nonprofits • State/Local Governments • HUD • Tenants • Tax Professionals

  10. Who Can Use Credits? • C Corporations Can Use Credits and Losses Against Ordinary Income and Taxes • Limitations on “Closely-Held” Corporations • Individuals Limited Under Passive Loss Rules to Approximately $9,900/Year at the 39.6% Rate • Cannot Use Credits Against Alternative Minimum Tax

  11. Structure Syndicator GP Investor LP$$$ Local GP InvestmentPartnership LP Developer OperatingPartnership

  12. Key Business Terms • Projects Owned by Limited Partnership or Limited Liability Company • Limited Partner Generally Owns 99.99% of Tax Credits, Losses and Profits • Limited Partner Pays in Capital Contributions in Multiple Installments (Generally 3 or 4), Based on Negotiated Benchmarks • General Partner Guarantees Completion, Amount of Credits, and Funding of Deficits

  13. Tax Credit Development Timeline July 2008 Read State QAP. Analyze Prior Winners, Meet With Staff. July 2008 Pick Site, Plan Type of Project. August 2008 Develop Cash Pro Formas and Construction Budget. Investigate Loan Availability and Interest Rates. Request Market Study. November 2008 Option Land (With Conditions Regarding Zoning, Approvals). November 2008 Apply for Soft Loans/Grants, if Necessary. December 2008 Receive Soft Loan Commitment.

  14. Tax Credit Development Timeline (Cont’d) March 2009 Apply for Tax Credits. May 2009 Receive Reservation of Tax Credits. May 2009 Work on Site Plan and Zoning Approvals. Submit Applications for Construction and Permanent Loans. July 2009 Obtain Site Plan and Zoning Approvals. July 2009 Purchase Land. Select Equity Investor and Execute Letter of Intent. Execute Commitment Letter for Debt/Equity. November 2009 Submit Cost Certification of 10% of Reasonably Expected Basis for Carryover Allocation (State Deadlines Vary). December 2009 Obtain Carryover Allocation.

  15. Tax Credit Development Timeline (Cont’d) January 2010 Close on Equity Investment and Construction Loan. Begin Construction. November 2010 Finish Construction. Begin Leasing. January 2011 Start First Year of Credit Period. Continue Leasing. Submit Cost Certification for Forms 8609. April 2011 Achieve Full Lease-up and Beginning of Break-Even Period. Obtain Forms 8609. September 2011 Close Permanent Loan and Achieve Final Equity Contribution. December 31, 2011 Place All Buildings in Service.

  16. Calculating Credits/Defining Terms • Annual Credit Amount = Applicable Percentage X Qualified Basis • Annual Credit Amount Available for 10 Years • Credit Period Begins When a Building is Placed in Service Unless the Taxpayer Elects to Defer the Start of the Credit Period to the Next Taxable Year • First Year Credit Reduced to Reflect Qualified Occupancy During First Credit Year

  17. Applicable Percentage • Two Credits: • 70 Percent Present Value Credit (“9% Credit”) • 30 Percent Present Value Credit (“4% Credit”) • Credit Rates • 7.93% and 3.40% for July 2008 • Lowest Rates for July 2003 (7.78% and 3.33%) • Owner Elects to Set Applicable Percentage Either(i) When Receiving a Binding Commitment From the State (or When Tax-Exempt Bonds Issued) (a “Lock-in Election”), or (ii) When Building Placed in Service

  18. 9% Credit vs. 4% Credit

  19. 4% Credit for New Construction or Substantial Rehabilitation • Federally Subsidized New Construction or Rehabilitation Expenditures • Building Receives Tax-Exempt Bonds or Below Market Federal Loan • Below Market Federal Loan • From Federally Appropriated Funds • Interest Rate Below AFR (in July 2008 for Long-Term Loans Compounded Annually, AFR = 4.60%)

  20. Exceptions From Federally Subsidized Definition • HOME Loan if 40% at 50% Targeting (in Each Building) • Community Development Block Grant (“CDBG”) Loans • Affordable Housing Program (“AHP”) Loans • Loan or Bond is Subtracted From Eligible Basis • Section 8 • Native American Housing Assistance and Self-Determination Act (“NAHASDA”) of 1996 if 40% at 50% Targeting (in Each Building)

  21. 4% Credit for Acquisition • Based on the Acquisition Cost of an Existing Building • Purchase From an Unrelated Party • Ten-Year Rule • Certain Placements in Service Ignored • Carryover Basis • Acquired From Decedent • Placement in Service by Governmental Unit or Nonprofit Entity • Foreclosure • Waiver of Ten-Year Rule From Treasury

  22. Substantial Rehabilitation Requirement • Expenditures During a 24-month Period Selected by the Taxpayer Must Equal the Greater Of: • $3,000 Per Low-Income Unit, or • 10% of Adjusted Basis • “Separate New Building”

  23. 9% Credit for New Construction or Substantial Rehabilitation • If Not Federally Subsidized

  24. Basis Calculations • Start With Eligible Basis, Then Qualified Basis

  25. Eligible Basis • New Construction = Adjusted Basis (Generally, Development Cost Less Land) • Acquisition = Acquisition Cost • Substantial Rehabilitation = Capitalized Rehabilitation Expenditures (24-Month Rule) • Must Subtract Federal Grants • 130% Increase in Qualified Census Tracts (“QCTs”) and Difficult Development Areas (“DDAs”)

  26. Qualified Basis • Qualified Basis = Applicable Fraction X Eligible Basis • Applicable Fraction is the Lower of: • Number of Occupied Low-Income Units Divided by the Total Number of Residential Units, or • Floor Space Fraction

  27. Example of Tax Credit Calculation • 100 Unit Project/70 Low-Income Units • Total Development Costs (Including Land) = $5.5m • Land Value = $500k • Eligible Basis = $5.0m • Qualified Basis = $3.5m ($5.0m X 70%)

  28. Example Tax Credit Calculation (Cont’d) • Applicable Percentage = 7.93% (Not Federally Subsidized) • Annual Credit = $277,550 ($3.5m X 7.93%) • 10-Year Credits = $2,775,500

  29. Common Areas • Eligible Basis Includes Cost of Common Areas and Tenant Facilities to the Extent Such Facilities Are Made Available to all Residents Without Additional Charge • Common Areas Include Community Rooms, Garages, Laundry Rooms and Pools/Playgrounds • Common Areas/Tenant Facilities Must Be Used “Exclusively” by Tenants of the Tax Credit Property • Community Service Facility Exception: Cost of Construction “Community Service Facility” May Be Included in Eligible Basis Even if Non-Residents Use the Facility

  30. Manager Units • Eligible Basis Includes Cost of Constructing Units Occupied by a Full-Time Resident Manager/On-Site Maintenance Personnel • Manager Units Are Excluded From the Applicable Fraction When Determining a Building’s Qualified Basis

  31. Determining Eligible Basis in Mixed Use Buildings • Mixed Use Buildings May Qualify for Tax Credits but the Eligible Basis Must be Reduced by the Cost of any Non-Residential Rental Property • Cost of Common Areas Allocated Between Residential/Non-Residential Use According to any “Reasonable Method” that Properly Reflects the Proportional Benefits to Be Derived by the Residential/Non-Residential Property • Common Approach: Allocating Cost of Common Elements Based on Relative Square Footage of Residential/Commercial Property

  32. Equity Calculation • Pricing Primarily Based on Total Amount of 10-Year Credits Available to Investor and Market Conditions • Expressed as “Cents Per Tax Credit Dollar” • In Above Example, if Investor Will Pay $0.80 Per Tax Credit Dollar, Equity Equals $2,194,980 ($2,744,000 X 99.99% X 0.80) • Equity Generally Paid in Several Installments (Often 3 or 4 Installments) Based Upon Negotiated Benchmarks • If Bond-Financed 4% Deal, Equity Equals $951,905 (($5,500,000 - $500,000) X 70% X 3.40% X 10 X 0.80 X 99.99%)

  33. Income-Restricted • Minimum Set-Aside Election of: • 20% of Units at 50% of Area Median Income (“AMI”), or • 40% of Units at 60% of AMI • Election Upon Placement in Service • Must Meet Minimum by End of First Credit Year • HUD Publishes Area Income Figures Annually

  34. Rent-Restricted • Rent (Including Utilities) Cannot Exceed 30% of Qualifying Income for Assumed Family Size; Based on Bedrooms Per Unit • Rent Limits Change Annually With Publication of New Area Median Incomes • Rent Will Not Decrease Below Original Floor • Gross Rent Does Not Include Section 8 (or Similar Rental Subsidies) • Gross Rent Must Include Utility Allowance for Tenant-Paid Utilities (i.e., Deduct From Rent to Owner)

  35. Continued Compliance • 15-Year Compliance Period • Continued Tenant Qualification • 40% Increase Above Eligibility OK • Vacant Units/Over-Income Units OK if Next Available Unit Rule Followed

  36. Understanding The Affordability Commitment • 30-Year Affordability Commitment • 15-Year Tax Credit Compliance Period • 15-Year Extended Use Period • Early Termination of 30-Year Affordability Commitment • Foreclosure (or Instrument in Lieu of Foreclosure) • Qualified Contract Process • Extended Use Agreements

  37. Qualified Contract • State to Find Buyer if Requested by Owner After 14th Year Pursuant to Qualified Contract • Contract = • Outstanding Debt + • Adjusted Investor Equity + • Other Capital Contributions, Less • Cash Available for Distribution

  38. Qualified Contract (Cont’d) • Adjusted Investor Equity = Initial Investor Equity to Project Inflated by COLA (Up to 5% Per Year) • If No Buyer Found Within One Year, Property May Be Sold or Converted to Non-Low-Income Housing, Subject to 3-Year Vacancy Decontrol • IRS Issued Proposed Regulations in June 2007; Comments Received and Under Review; Public Hearing Held

  39. Recapture • Recapture on Non-Compliance: • Accelerated Portion of Credit Recaptured (1/3 of Credit First 10 Years, Decreasing Through Year 15) • If Minimum Set-Aside Fails, All Accelerated Credits Recaptured • Otherwise, Unit-by-Unit (Extent of Decrease in Qualified Basis)

  40. Recapture (Cont’d) • Recapture on Change of More Than 1/3 in Ownership or Sale of Project • Bond Posting Procedure • New Owner Steps Into Seller’s Shoes Upon Sale of Project

  41. Compliance Monitoring • State Credit Agencies Monitor Projects • Owners’ Recordkeeping Requirements: • Number of Low-Income and Total Units • Income Certifications/Annual Re-Certifications and Backup Verifications • Qualified Basis and Eligible Basis Amounts • Rent Amounts • Owner Annual Compliance Certifications 11084826v1

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