Low-Income Housing Tax Credit

The first step in the process is for a project owner to submit an application to a state authority, which will consider the application competitively. The application will include estimates of the expected cost of the project and a commitment to comply with one of the following conditions, known as "set-asides":

• At least 20% or more of the residential units in the development are both rent restricted and occupied by individuals whose income is 50% or less than the area median gross income.
• At least 40% or more of the residential units in the development are both rent restricted and occupied by individuals whose income is 60% or less than the area median gross income.
• At least 40% or more of the residential units in the development are both rent restricted and occupied by individuals whose income does not exceed the imputed income limitation designated by the taxpayer with respect to the respective unit. The average of the imputed income limitations shall not exceed 60% of the area median gross income.

Typically, the project owner will agree to a higher percentage of low income usage than these minimums, up to 100% . Low-income tenants can be charged a maximum rent of 30% of the maximum eligible income, which is 60% of the area's median income adjusted for household size as determined by HUD. There are no limits on the rents that can be charged to tenants who are not low income but live in the same project.

The program is administered at the state level by State housing finance agencies with each state getting a fixed allocation of credits based on its population. The state housing agency has wide discretion in determining which projects to award credits, and applications are considered under the state's "Qualified Allocation Plan" (QAP). The credits are usually awarded to projects in a few "allocation rounds" held each year, on a competitive basis. Typically, the top ranked project will get credits, then the second, and so on until the credits are exhausted for the round. A portion of each state's credits must be "set aside" for projects sponsored by non-profit organizations, although non-profits more typically apply for credits under the "general" rules, without regard to the set-aside.

This allows each state to set its own priorities and address its specific housing goals. It also encourages developers to offer benefits that are better than the established minimums when competing against other projects (e.g., charging lower rents, or maintaining the low income requirements for a longer number of years, will often improve a project's rank in the competitive process; it is important to check the particular state's QAP and application to see how it makes these judgments).

Not all projects claim the low income credit based on this competitive process. Projects that are financed by tax-exempt bonds can also qualify for the credit. Certain types of tax-exempt bonds are also limited on a state-by-state basis, and the state agency responsible for bonds may be different, but the state agency generally applies similar rules as the agency responsible for the tax credit program.

The project owner must agree to comply with Section 42 and maintain an agreed percentage of low income units in a "Land Use Restriction Agreement" (LURA) which is recorded. Under the LURA, the project is required to meet the particular project's low income requirements for a 15-year initial "compliance period" and a subsequent 15-year "extended use period" (or longer, if required by the local authority; the extended use rules were added in 1989, and do not apply to projects developed in the first few years of the program). The credits are subject to "recapture" if the project fails to comply with the requirements of Section 42 of the Tax Code during the 15-year compliance period. Rules that required a taxpayer to post a "bond" if a recapture event occurred were repealed in 2008.

The "eligible basis" of a project is the cost of acquiring an existing building if there is one (but not the cost of the land), plus construction and other construction-related costs to complete the project. (For example, the costs of obtaining permanent financing, or "syndicating" the credits to an investor are not included. Adjustments must be made for federal grants as well.). This is then multiplied by the percentage of the units that are "low income", in accordance with the conditions described above, to determine the project's "qualified basis" that actually qualifies for the credit. For this reason, many developers agree to make 100% of the units low income in order to maximize the potential tax credits. Projects for (1) new construction and (2) the cost of rehabilitating an existing building, if not funded by tax-exempt bonds, can receive a maximum annual tax credit allocation based on a rate which is generally 9% of the project's eligible basis. The cost of acquiring an existing building (but not the land), and projects financed in whole or in part with tax-exempt bonds, are eligible for a credit of approximately 3% to 4% annually. The credit percentages are announced monthly by the Internal Revenue Service, but for buildings placed in service after July 30, 2008, the credit for new and rehabilitated buildings that are not financed with tax-exempt bonds is not less than 9%. Rules that provided a lower credit rate for "below-market federal loans" were repealed in 2008, applicable to buildings placed in service after July 30, 2008. Another rule that does not allow a credit for the acquisition cost of existing buildings, unless they were last placed in service more than ten years ago, no longer applies if the building was substantially financed pursuant to a large number of federal or state programs.

Regardless of the result of these computations, the credit cannot exceed the amount allocated by the state agency. For example, suppose a project cost $100,000 for land, $400,000 for an existing building that was most recently placed in service more than ten years ago, and $1,000,000 for rehabilitation; also suppose that the applicable percentages are 3.5% and 9%, that the project will be 80% low income, that there are no tax-exempt bonds, and that the state agency awarded $70,000 per year of credits. The credits are computed as follows -- (1) the cost of the land is not eligible for credits; (2) the maximum annual credit for the purchase of the building is $400,000 times 80% times 3.5%, or $11,200; (3) the maximum annual credit for the rehabilitation is $1,000,000 times 80% times 9%, or $72,000. The total maximum annual credits, $83,200, is more than the amount of credits awarded by the state. As a result, the project is limited to $70,000 of credits per year.

The credits are not provided in a lump sum but instead are claimed in equal amounts over a 10-year "credit period" (many projects claim credits over 11 years, due to the rules governing how many credits can be claimed in the first year of the credit period). Thus, the $70,000 of annual credits described in the illustration will yield a total of $700,000 of credits over the credit period.

A tax credit, or equity, syndicator connects private investors seeking a strong return on investments with developers seeking cash for a qualified LIHTC project. As mentioned above, the credit is used to generate private equity, often prior to, or during, the construction of the project. Developers typically "sell" the credits by entering into limited partnerships (or limited liability companies) with an investor, with 99.99% of the profits, losses, depreciation, and tax credits being allocated to the investor as a partner in the partnership. The developer serves as the general partner/managing member, and receives a majority of the cash flow (either through the payment of fees, or through distributions). The funds generated through the syndication vary from market to market and year-to-year. Although 85-95¢ for each total dollar of tax credits was common in the first several years of the 21st century, recent turmoil in the financial markets has reduced some of the demand for tax breaks, meaning that investors are paying somewhat less, as of early 2008. So, for example, $10,000 credits annually for the next 10 years would be $100,000 total, and a developer could probably raise $75,000-$85,000 through syndication, which is less than could have been raised for the few years prior to 2008. Further, due to the fact that depreciation on the buildings owned by the partnership is also tax deductible, and that depreciation is allocated 99.99% to the investor, investors may pay still more for the total tax benefits. (Indeed, when the credit alone was selling for 95 cents per dollar of credit, there were some cases where investors actually paid slightly more than a dollar for a dollars worth of tax credits plus other tax benefits.) In 2014, as Congress re-evaluates "tax-expenditures", the fate of the LIHTC program is questionable due to the high "soft" costs and relatively low investor yield.

An investor will typically stay in the partnership for at least the compliance period, because a reduction in its interest can also result in recapture of the credits. An investor wishing to exit the partnership before the end of the compliance period may post a surety bond to avoid credit recapture.

The following table summarizes the relationship between the developer and outside investors. NOTE: This is only meant to demonstrate the concept of partnerships for such projects and is not to be taken as literal guidelines for developing a LIHTC project.

The annual allocations under the program increased significantly in 2001 when Congress increased the state allocations by 40%.

States are also responsible for monitoring the ongoing development costs, quality and operation of approved projects, as well as the enforcement threat of notifying the IRS of "noncompliance" if the project deviates from the applicable requirements of the Code and the LURA, described above. Such a notice can lead to recapture of previously taken credits and inability to claim credits from the project in the future. The IRS has published Form 8823 for the purpose of reporting possible problems with the project, and its Guide to the Form 8823 that details the IRS view on various issues related to noncompliance.

Owners of LIHTC properties and their management agents must be able to prove the tenants living in the low income units meet the eligibility requirements of the LIHTC Program and remain eligible throughout their tenancy. [Section 1.42-5(b)][1] The initial eligibility requirements include, but are not limited to, income eligibility, rent restriction, full-time student limitations, and non-exclusion of Section 8 applicants. Also, each year the tenant remains in the low-income unit, a re-examination or recertification must be performed to ensure the tenant continues to remain LIHTC Program eligible. Failure to correctly prove initial eligibility and re-examine continued eligibility is noncompliance and puts the LIHTC owner at risk of losing its credit claim.

Thorough documentation of tenants' eligibility is required and records must be maintained for each qualified tenant. Records from the first year of participation in the LIHTC Program must be maintained for 21 years from the date the tax return claiming these credits was filed including all extensions, and subsequent years' records must be maintained for 6 years from the date the tax return claiming the applicable credits was filed including all extensions. [Section 1.42-5(b)(vii)(2)][2]

Owners must report on the compliance status of the LIHTC property at least annually to the State Allocation Agency from which it received its credit allocation. [Section 1.42-5(c)][3] At least annually, State Allocation Agencies are required to monitor and inspect the LIHTC properties in which it has allocated credits. Any discovered or suspected noncompliance must be reported to the Internal Revenue Service (IRS) using IRS Form 8823. State Allocation Agencies must follow very specific requirements for monitoring, inspecting and reporting as laid out by the IRS. [Section 1.42-5 and Federal Register: January 14, 2000 (Volume 65, Number 10) – Compliance Monitoring and Miscellaneous Issues Relating to the Low-Income Housing Credit] [4]

Owners and their management agents are strongly encouraged and in some cases mandated by their State Allocation Agencies to become certified compliance professionals. Certifications can be obtained by several LIHTC industry groups. Certifications include the National Compliance Professional (NCP), the Site Compliance Specialist (SCS), the Housing Credit Certified Professional (HCCP), the Specialist in Housing Credit Management (SHCM), and the Certified Credit Compliance Professional (C3P). Certifications requirements usually include an Education and Experience Requirement. The Education Requirement is met by successfully passing an industry exam and accruing the applicable number of required course hours. The Experience Requirements vary among designations. All designations also contain a continuing education component to ensure certified professionals maintain their knowledge and keep abreast of the LIHTC Program changes.