HOUSING TAX CREDIT AND MULTIFAMILY BOND PROVISIONS

OF HR 3221(AS OF JULY 21, 2008)

Richard S. Goldstein

July 24, 2008

STATUS

• HR 3221 passed Senate on July 11, 2008 by a vote of 63-5

• Expected to be considered by the House on July 23

• LIHTC provisions contained in the Senate-passed bill expected to be modified slightly by House and agreed to by the Senate

• Overall bill will contain GSE “bailout” provisions and could slow passage of the bill in the Senate

• Once passed by Congress, expectation is that President will sign the bill

EFFECTIVE DATES

• Unless otherwise noted, provisions will generally apply to buildings placed in service after date of enactment (when the President signs the bill)

• Result is that projects which previously received credit allocations or bond financing will be able to take advantage of many of the bill’s provisions

• State credit agencies will need to adopt procedures to deal with potential additional credit allocations

CREDIT RATE

• Provides a credit percentage of not less than 9%, effective for buildings placed in service after enactment and before December 31, 2013 (i.e., provision is “sunsetted”)

• Applies to non-federally subsidized new construction and substantial rehab

• No change for “4%” credit for bond financed projects and acquisition of existing buildings—rate will continue to float as under current law

DEFINITION OF “FEDERALLY SUBSIDIZED” BUILDINGS

• Eliminates the concept of “below market Federal loans”

• Result is that new construction and sub rehab expenditures will qualify for 9% credit even if the project receives a below market Federal loan

• Tax-exempt bond financed projects still considered federally subsidized and therefore only eligible for the 4% credit

• Example: HOPE VI and HOME financed projects will qualify for 9% credits even if interest rate is below the applicable Federal rate

CHANGES TO DEFINITION OF ELIGIBLE BASIS

• Any buildings designated by housing credit agency as needing an increase in credit for financial feasibility may have eligible basis increased by agency by up to 30%

• Minimum rehab threshold doubled to greater of $6000 per low income unit (to be adjusted for inflation) or 20% of adjusted basis--effective for allocations made and bonds issued after enactment

CHANGES TO DEFINITION OF ELIGIBLE BASIS (CONTINUED)

• Allowable basis for community service facilities increased to 25% of first $15 Million of eligible basis plus 10% of additional basis

• Treatment of federal grants is clarified:– Rental, operating and interest reduction payments not

considered federal grants requiring basis reduction– Joint Committee on Taxation report language to clarify that

loans made from the proceeds of federal grants do not require basis reduction regardless of interest rate on loan (correcting a mistake in House report)

– JCT report to state that provision intended to apply to grants made before and after enactment

CHANGES TO RULES FOR ACQUISITION CREDITS

• 10 percent related party rule (identity of interest between buyer and seller) liberalized to 50%

• New exception to ten year rule— the ten year rule does not apply to projects assisted, financed or operated under HUD or RHS housing programs or similar state housing programs

SIMPLICATION PROVISIONS

• Prohibition on Section 8 Moderate Rehabilitation repealed

• Period for satisfying ten percent test for carryover allocations increased to one year from date of allocation

REPEAL OF RECAPTURE BONDS

• Recapture bond requirement on disposition of buildings or interests therein is repealed

• Replaced with extended period for the statute of limitations—3 years following a recapture event

• Effective for dispositions after enactment and for dispositions prior to enactment if taxpayer elects application of new provisions

• Result is that outstanding bonds may be retired if taxpayer elects application of these provisions

MISCELANEOUS CHANGES

• QAPs must take into account energy efficiency and historic nature of projects—effective for allocations after 2008

• Student rule amended—new exception for students previously in foster care—effective for determinations after enactment

• Income limits for rural projects (as defined in Section 520 of Housing Act of 1949) measured by reference to greater of area median income or national non-metro median income—does not apply to bond financed projects—effective for income determinations made after enactment

GENERAL PUBLIC USE

• Project may still qualify for housing credits even if occupancy restrictions or preferences that favor tenants with:– special needs or– are members of a specified group under federal or state

housing program or policy that supports housing for such group or

– are involved in artistic or literary activities

However, housing must still be consistent with federal Fair Housing laws

MULTIFAMILY HOUSING BONDS

• Multifamily housing bonds may be refunded (i.e., no new volume cap required) if:– Refunding bond is issued within six months of repayment of

loan made with original bonds– Refunding bond issued within four years of original issuance– Maturity of refunding bond not later than 34 years after

original bond is issued– TEFRA approval process is followedSecond (refunding bond) does NOT generate “automatic”

credits

HOUSING BOND AND CREDIT COORDINATION

• Next available unit rule for bond/credit projects applied on a building (not project) basis

• Housing credit student rules applied to bond projects

• Housing credit single room occupancy rules applied to bond projects

• New rules effective for determinations after enactment with respect to bonds issued before and after enactment

AREA MEDIAN INCOME RULES

• Income determinations for bond and housing credit projects may not decrease for any year after 2008

• For “HUD Hold Harmless” projects, median incomes may be increased by change in AMI from prior year

• HUD Hold Harmless projects are those whose incomes levels were not decreased after change in income determination methodology adopted by HUD

• Result is that in affected areas, income and rent determinations for older projects will be higher than new projects

INCOME RE-CERTIFICATIONS

• Income re-certifications not required for 100% low income projects for bond and credit projects—effective upon enactment for all such projects

HOUSING BOND VOLUME CAP

• Volume cap for residential rental and mortgage revenue bonds increased by $11 Billion for 2008

• States share in increase on a per capita basis

• May be carried forward through 2010

• Bonds may be used to refinance sub-prime loans

ALTERNATIVE MINIMUM TAX PROVISIONS

• Housing credits and rehabilitation credits (under Section 47) may be used to offset AMT—effective for buildings placed in service after 2007 for housing credits and for rehabilitation expenditures incurred after 2007

• Interest on residential rental bonds, mortgage revenue bonds and veterans mortgage bonds exempt from AMT—effective for bonds issued after enactment