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ACQUISITION/REHABILITATION: THE 10% ANTI-CHURNING RULE. LEARNING THE BASICS: HOUSING TAX CREDITS “101” IPED, INC. Arlington, Virginia October 18-19, 2007. Gary A. Band, Esquire Nixon Peabody LLP 401 9th Street, N.W. Washington, D.C. 20004 (202) 585-8809 (866) 947-3524 (fax)

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slide1

ACQUISITION/REHABILITATION: THE 10% ANTI-CHURNING RULE

LEARNING THE BASICS:

HOUSING TAX CREDITS “101”

IPED, INC.

Arlington, Virginia

October 18-19, 2007

Gary A. Band, Esquire

Nixon Peabody LLP

401 9th Street, N.W.

Washington, D.C. 20004

(202) 585-8809

(866) 947-3524 (fax)

[email protected]

slide2

GP

Old

LP

GP

New

LP

Property

Buying

Partnership

Selling

Partnership

Cash

the rule
THE RULE
  • Section 42(d)(2)(B)(iii) of the Code provides that in order to receive acquisition credits the building cannot previously been placed in service by the taxpayer or by a related person.- Cliff Test – if “related person” lose acquisition credits.
slide4
Prevents taxpayers from “Double Dipping”
  • Claiming tax incentives on property and then selling to Related Person and receive Acquisition Credits.
related person test
RELATED PERSON TEST
  • Section 42(d)(2)(D)(iii)(II) tells you that a “related person” to a taxpayer means 10% or greater common ownership.- Partnerships - person is related to the partnership if the person owns, directly or indirectly, more than 10% of the capital interest or the profits, in such partnership.
how do you determine your percentage ownership in a lihtc partnership
How do you determine your percentage ownership in a LIHTC Partnership?
  • LIHTC Partnerships are structured with partners receiving different percentage interests in different items:- Tax Credits

- Cash Flow

- Sale/Refinancing Proceeds

- Maybe State Tax Credits

slide7
The LIHTC industry has prudently decided that if you have a 10% or greater interest in any item in the seller, you have to have less than a 10% interest in all items in the buyer.
slide8
Since a developer (GP) tends to have more than a 10% interest in Cash Flow in the old Partnership (the seller), the developer tends to have a 9.9% interest in Cash Flow and in Sale/Refinancing Proceeds in the new Partnership (the buyer).
slide9
Not your typical LIHTC business deal if the syndicator/investor has 90.1% of Cash Flow and Sale/Refinancing Proceeds.
slide10
So, what typically happens?

- Partnership Management Fee

- Incentive Management Fee

slide11
The question is whether or not these fees exceed a reasonable fee which would be paid to a third-party service provider performing the same services.
slide12
Anything paid (or payable if there were Cash Flow) in excess of a reasonable fee could be reclassified as additional Cash Flow to the General Partner.
slide13
And, since we’re already at 9.9% of the Cash Flow going to the General Partner, there’s no room for error.
slide14
The risk is the loss of all of the Acquisition Credits if the General Partner is deemed to really have a 10.01% interest in Cash Flow.
slide15
Look at these Cash Flow fees to see if they’re “reasonable.”

For instance, would a third-party service provider agree to be paid only if there were sufficient Cash Flow at that point in the Cash Flow waterfall?

slide16
A Cash Flow fee looks more like a real fee, rather than like a Cash Flow distribution, if it accrues, even if there is no Cash Flow available to pay it currently.
newer techniques
Newer Techniques:

- Higher Property Management Fees

  • recently saw a property management fee equal to 14% of gross rental income, with the argument that there were very low rents
  • the property manager was affiliated with the General Partner
purchase money notes
Purchase Money Notes
  • Payable by the buying partnership to the selling partnership out of Cash Flow of the buying partnership
  • a good appraisal is important – size of acquisition debt must be supported by “as-is” appraisal.
  • True Debt analysis – is it secured by a mortgage and do the projections show the debt being repaid?
co gp to receive cash flow
Co-GP to Receive Cash Flow

- Existing GP has 9.9% of Cash Flow and new Co-GP has 70-80% of Cash Flow.

- Need to closely examine the full relationship between the two GPs.

ground lease
Ground Lease

- to an affiliate of the seller

- appraisal issue

- market rate ground lease

development fee for the rehabilitation
Development Fee for the Rehabilitation

- especially if minimal rehabilitation

- similar issue with fee to an affiliated general contractor for the rehabilitation work

the investor as a related party
The Investor as a “Related Party”

Also, don’t forget the 10% test from the investor side.

  • Usually OK to use the same syndicator as long as the ultimate investors don’t cause a 10% problem.

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