1 / 42

James F. Duffy – Nixon Peabody LLP Thomas A. Giblin – Nixon Peabody LLP

IPED AFTER THE CLOSING: Maximizing Value and Avoiding Pitfalls at Tax Credit Properties Pre-Conference Workshop: Tax Credit Basics San Diego, California April 25-27, 2007. James F. Duffy – Nixon Peabody LLP Thomas A. Giblin – Nixon Peabody LLP Brad Elphick – Novogradac & Company LLP.

caspar
Download Presentation

James F. Duffy – Nixon Peabody LLP Thomas A. Giblin – Nixon Peabody LLP

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. IPEDAFTER THE CLOSING: Maximizing Value and Avoiding Pitfallsat Tax Credit PropertiesPre-Conference Workshop:Tax Credit BasicsSan Diego, CaliforniaApril 25-27, 2007 James F. Duffy – Nixon Peabody LLP Thomas A. Giblin – Nixon Peabody LLP Brad Elphick – Novogradac & Company LLP

  2. Background • Tax Reform of 1986 • Section 42 of IRC of 1986 • Housing Program in the Tax Code • Statute Amended Several Times, Including in 2000 • Objective to Provide Investor Equity • Credit is a Dollar-for-Dollar Tax Reduction

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

  4. Key Business Terms • Projects Generally Owned by Limited Partnership or Limited Liability Company • Limited Partner Generally Owns 99.99% of Tax Credits, Losses & 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

  5. Calculating Credits/Defining Terms • “Applicable Percentage” times “Qualified Basis” = Annual Credit Amount • Annual Credit Amount available for 10 years.

  6. Applicable Percentage • Two Credits: • 70 Percent Present Value Credit (the “9% Credit”) • 30 Percent Present Value Credit (the “4% Credit”) • Credit Rates • 8.10% (9% Credit) & 3.47% (4% Credit) – April 2007 • Lowest rates in July 2003 – 7.78% and 3.33%

  7. Applicable Percentage (cont’d) • Owner’s election to set the 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

  8. 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” • Interest Rate below the “applicable federal rate” (the “AFR “) which is approximately 4.81% in April 2007 (for long-term loans compounded annually) • Funded from federally appropriated dollars

  9. 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 of 1996 (“NAHASDA”) of 1996 if 40% at 50% Targeting (in each building)

  10. 4% Acquisition Credit • Existing Buildings/Acquisition Costs • Purchase from “Unrelated Party” • Ten-Year Rule • Waiver of Ten-Year Rule from Treasury Department

  11. 4% Acquisition Credit (cont’d) • Certain Placements in Service Ignored • Carryover Basis • Acquired from Decedent • Placement in Service by Governmental Unit or Non-Profit Entity • Foreclosure

  12. 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

  13. 9% New Construction/Substantial Rehabilitation Credit • If Not Federally Subsidized

  14. Basis Calculations • Start with “Eligible Basis”, then “Qualified Basis”

  15. “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 Census (“QCTs”) and Difficult Development Areas (“DDAs”)

  16. “Qualified Basis” • “Applicable Fraction” times “Eligible Basis” equals “Qualified Basis” • “Applicable Fraction” is the Lower of: • Number of Occupied “Low-Income Units” divided by the Total Number of Units, or • “Floor Space Fraction”

  17. “Low Income Units” • Threshold of 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

  18. “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

  19. “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

  20. Rent Calculation Example • Median Income = $60,000 • Two Bedroom Unit • 3 Person (2BR x 1.5) Income Limit = $32,400 • 30% of Income Limit = $9,720 • Monthly Rent (1/12) = $810

  21. 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)

  22. 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%)

  23. Example Tax Credit Calculation (cont’d) • Applicable Percentage = 8.10% (Not Federally Subsidized) • Annual Credit = $283,500 ($3.5M x 8.10%) • 10 Year Credits = $2,835,000

  24. 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 90 Cents Per Tax Credit Dollar, Equity Equals $2,551,245 ($2,835,000 x 99.99% x 0.90) • Equity generally paid in several installments (often 3 or 4 installments) based upon negotiated benchmarks

  25. Equity Calculation (cont’d) • If Tax-Exempt Bond Financing “4% Credit”, Equity Equals $1,092,941 • ($5,500,000 - $500,000) x 70% x 3.47% x 10 x 0.90 x 99.99% = $1,092,941

  26. Continued Compliance • 15-Year “Compliance Period” • Continued Tenant Qualification: • 40% Increase Above Then-Current Eligibility Level is OK • Vacant Units/Over-Income Units OK if “Next Available Unit Rule” Followed

  27. 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)

  28. 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

  29. Extended Use • Recorded “Extended Low-Income Housing 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”

  30. “Qualified Contract” • State to Find Buyer If Requested by Owner After 14th Year Pursuant to “Qualified Contract” • Contract Price = Fair Market Value of Any Market Rate Portion Plus, for the Low-Income Portion, the Applicable Fraction Times: • Outstanding Debt Plus • “Adjusted Investor Equity” Plus • Other Capital Contributions, Less • Cash Available for Distribution

  31. Qualified Contract (cont’d) • “Adjusted Investor Equity” = Initial Investor Equity to Project, to the extent reflected in the adjusted basis of the Project, Inflated by COLA (up to 5% per year) • If No Buyer Found Within One Year, the Extended Use Period ends, Subject to 3-Year Vacancy Decontrol

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

  33. STATE ALLOCATION VOLUME LIMIT • Congress Raised Cap in 2000 From $1.25 to $1.50 in 2001, $1.75 in 2002, Then Adjusted for Inflation • $1.95 Per Person for 2007 • $2,275,000 State Minimum in 2007

  34. Volume Limit Rules • Example: • State With Three Million Population has $5,850,000 in Credits in 2007 • Amount is for One Year of Credit • 10% Non-Profit Set-Aside • 50% Test: Private Activity Tax-Exempt Bonds Subject to Bond Volume Cap; Tax Credits Do Not Count Against the State’s Limitation of Aggregate Tax Credits

  35. “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

  36. Additional QAP Rules • QAP Must Provide Procedure for Notifying IRS of Non-Compliance • Bond Financed Projects Must “Satisfy” QAP

  37. 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

  38. 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

  39. State Allocation Process • “Carryover Allocation” • 10% of “Reasonably Expected Basis” Must be Incurred by 12/31 of Allocation Year or 6 Months After Allocation, if Allocation After 6/30 • Building Must be Placed in Service by 12/31 of 2nd Year After Carryover • Carryover Basis Includes Costs of Land and Depreciable Property

  40. Carryover Allocation Document • Must be Issued by State Agency by 12/31 of Allocation Year • 10 Elements Required in Document • Agency Must Later Issue Forms 8609 After Buildings Complete • State May Carry Forward Unused Credits for One Year; Then Goes to National Pool

  41. Who Can Use Credits? • Individuals Limited Under Passive Loss Rules to Approximately $9,900/Year at the 39.6% rate • C Corporations Can Use Losses and Credits Against Ordinary Income and Taxes • Cannot Use Credits Against AMT • Limitations on “Closely-Held” Corporations 10531434

More Related