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IPED HOUSING TAX CREDITS “101” Boston, Massachusetts June 7-8, 2007 Molly R. Bryson Thomas A. Giblin

IPED HOUSING TAX CREDITS “101” Boston, Massachusetts June 7-8, 2007 Molly R. Bryson Thomas A. Giblin. Background. Part of 1986 Tax Reform to Encourage the Construction and Rehabilitation of Low-Income Rental Housing Tax Incentives Replace Direct Funding Guarantee Programs

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IPED HOUSING TAX CREDITS “101” Boston, Massachusetts June 7-8, 2007 Molly R. Bryson Thomas A. Giblin

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  1. IPED HOUSING TAX CREDITS “101”Boston, MassachusettsJune 7-8, 2007Molly R. BrysonThomas A. Giblin

  2. Background • Part of 1986 Tax Reform to Encourage the Construction and Rehabilitation of Low-Income Rental Housing • Tax Incentives Replace Direct Funding Guarantee Programs • Administered by the Treasury Department and Allocated by State Agencies • Contained in Section 42 of the Tax Code (Including Any Penalties for Noncompliance) • Objective: To Provide Investor Equity to Lower Debt Service, Thereby Lowering Rents • Emphasis on Private Sector Involvement (i.e. Developing and Managing Projects) • 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 • $1.95 Per Person for 2007 • $2,275,000 State Minimum in 2007

  5. Volume Limit Rules • Example: • State With Three Million Population Has $5,850,000 in Credits in 2007 • 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 Do 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 • Nonprofits • State/Local Governments • HUD • Tenants • Tax Professionals • GSEs

  10. Who Can Use Credits? • C Corporations Can Use Losses and Credits 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 AMT

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

  12. Key Business Terms • Projects Generally 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 March 2007 Read State QAP. Analyze Prior Winners, Meet With Staff. April 2007 Pick Site, Plan Type of Project. May 2007 Develop Cash Pro Formas and Construction Budget. Investigate Loan Availability and Interest Rates. Request Market Study. September 2007 Option Land (With Conditions Regarding Zoning, Approvals). September 2007 Apply for Soft Loans/Grants, if Necessary. December 2007 Receive Soft Loan Commitment.

  14. Tax Credit Development Timeline (Cont’d) March 2008 Apply for Tax Credits. May 2008 Receive Reservation of Tax Credits. May 2008 Work on Site Plan and Zoning Approvals. Submit Applications for Construction and Permanent Loans. July 2008 Obtain Site Plan and Zoning Approvals. July 2008 Purchase Land. Select Equity Investor and Execute Letter of Intent. Execute Commitment Letter for Debt/Equity. November 2008 Submit Cost Certification of 10% of Reasonably Expected Basis for Carryover Allocation (State Deadlines Vary). December 2008 Obtain Carryover Allocation.

  15. Tax Credit Development Timeline (Cont’d) January 2009 Close on Equity Investment and Construction Loan. Begin Construction. November 2009 Finish Construction. Begin Leasing. January 2010 Start First Year of Credit Period. Continue Leasing. Submit Cost Certification for Forms 8609. April 2010 Achieve Full Lease-up and Beginning of Break-Even Period. Obtain Forms 8609. September 2010 Close Permanent Loan and Achieve Final Equity Contribution. December 31, 2010 Place All Buildings in Service.

  16. Calculating Credits/Defining Terms • Annual Credit Amount = Applicable Percentage Times Qualified Basis • Annual Credit Amount Available for 10 Years

  17. Applicable Percentage • Two Credits: • 70 Percent Present Value Credit (the “9% Credit”) • 30 Percent Present Value Credit (the “4% Credit”) • Credit Rates • 8.11% (9% Credit) and 3.48% (4% Credit) – June 2007 • Lowest Rates in July 2003 – 7.78% and 3.33%

  18. Applicable Percentage (Cont’d) • Owner’s Election to Set Applicable Percentage Either(i) When Receiving a Binding Commitment From the State to Allocate Credits (or When Tax-Exempt Bonds Issued) (a “Lock-in Election”), or (ii) When Building Placed in Service

  19. 4% New Construction/Substantial Rehabilitation Credit • 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 (Approximately 4.91% in June 2007 for Long-Term Loans Compounded Annually)

  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 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% Acquisition Credit • Existing Buildings/Acquisition Costs • Purchase From Unrelated Party • Ten-Year Rule • Waiver of Ten-Year Rule From Treasury

  22. 4% Acquisition Credit (Cont’d) • Certain Placements in Service Ignored • Carryover Basis • Acquired From Decedent • Placement in Service by Governmental Unit or Nonprofit Entity • Foreclosure

  23. Substantial Rehabilitation Requirement • Greater Of: • $3,000 Per Low-Income Unit, or • 10% of Adjusted Basis • “Separate New Building” • Can Receive 4% Plus 9% Credits

  24. 9% New Construction/Substantial Rehabilitation Credit • If Not Federally Subsidized

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

  26. 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”)

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

  28. Low-Income Units • 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 1st Credit Year • HUD Publishes Area Income Figures Annually

  29. Low-Income Units (Cont’d) • Adjustments for Family Size Like Section 8 • Family of 4 Qualifies at 60% (50%) AMI • Family of 3 Qualifies at 54% (45%) AMI • Family of 2 Qualifies at 48% (40%) AMI • Single Household Qualifies at 42% (35%) AMI

  30. Rent-Restricted • Rent (Including Utilities) Cannot Exceed 30% of Qualifying Income for Assumed Family Size; Based on Bedrooms Per Unit • Occupancy Assumptions: • One Person for Studio • 1.5 Persons Per Bedroom

  31. Additional Rent Rules • 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)

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

  33. Example Tax Credit Calculation (Cont’d) • Applicable Percentage = 8.11% (Not Federally Subsidized) • Annual Credit = $283,850 ($3.5m X 8.11%) • 10-Year Credits = $2,838,500

  34. 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 $0.90 Per Tax Credit Dollar, Equity Equals $2,554,394 ($2,838,500 X 99.99% X 0.90) • Equity Generally Paid in Several Installments (Often 3 or 4 Installments) Based Upon Negotiated Benchmarks • If Bond-Financed 4% Deal, Equity Equals $1,096,090 (($5,500,000 - $500,000) X 70% X 3.48% X 10 X 0.90 X 99.99%)

  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. Recapture • Recapture on Non-Compliance: • Accelerated Portion of Credit Recaptured (1/3 of Credit 1st 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)

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

  38. Extended Use • Recorded Extended Use Commitment • Extended Use Period: • At Least 30 Years, May Be Longer to Gain Points • Termination (With Three-Year Vacancy De-Control) • Upon Foreclosure • Qualified Contract

  39. 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

  40. 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 Guidance Expected in 2007

  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 10603835.1

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