On March 23, the President signed the Consolidated Appropriations Act, 2018 (H.R. 1625), a $1.3 trillion dollar spending bill that funds the federal government through September 30, 2018. In addition to preventing a government shutdown, this omnibus spending bill incorporated the following key provisions that help to strengthen and expand the Low Income Housing Tax Credit (LIHTC):
- A 12.5% increase in the annual per capita LIHTC allocation ceiling (after any increases due to the applicable cost of living adjustment) for calendar years 2018 to 2021.
- An expansion of the definition of the minimum set-aside test by incorporating a third optional test, the income-averaging test. Pursuant to the Code, a project meets the 40-60 minimum set aside test when 40% of the units in the project are both rent restricted and income restricted at 60% of the area median income. Under the new law, the income test is also met if the average of all the apartments within the property, rather than every individual tax credit unit, equals 60% of the area median income. Notwithstanding, the maximum income to qualify for any tax credit unit is limited to 80% of area median income.
This legislation is a great win for affordable housing advocates who have been pushing for LIHTC improvements through the Affordable Housing Credit Improvement Act, introduced in both the Senate (S. 548 sponsored by Senators Cantwell and Hatch) and the House (H.R. 1661 now sponsored by Congressmen Curbelo and Neal) in 2017, as discussed previously in a prior blog post.
We will continue to provide updates on legislation related to Tax Reform. Just in case you missed it, last month Ballard Spahr hosted a webinar on the impact of Tax Reform on the Low Income Housing Tax Credit with our colleagues from RubinBrown LLP, Enterprise Community Partners, Inc. and Red Stone Equity Partners. Presentation slides and a recording of the webinar are available on our event page.
As we know, the President has signed what was originally titled Tax Cuts and Jobs Act, the most significant overhaul to the U.S. Tax Code since 1986. The President signed the Act into law after the first of the year in order to avoid some automatic spending cuts.
In its final form, this Tax Code overhaul retains private activity bonds and the the low-income housing tax credit. However, according to A Call To Invest in Our Neighborhoods (ACTION) Campaign, the amendment of other critical provisions of the Tax Code, especially, the lowering of the corporate tax rate from 35 percent to 21 percent and the creation of a base erosion and anti-abuse tax, present concern for affordable housing, as these provisions can impact an investor’s tax credit appetite. In an analysis performed by Novogradac and Company, the final version of the bill “would reduce the future supply of affordable rental housing by nearly 235,000 homes over 10 years.” Further, it is anticipated that other changes to the Tax Code, such as those relating to bonus depreciation, depreciation, and interest expense limitations, will impact equity pricing.
The legislation also retains the new market tax credit, with no change to its expiration which is after the 2019 allocation. The 20% historic tax credit was also retained, but with significant modification, including claiming the credit ratably over 5 years.
Ballard Spahr’s Tax Group is also following the legislative developments of other provisions of the bill. Late yesterday, the Tax Group issued a thoughtful analysis of the final bill.
Please use our Tax Reform Alert Center as a resource to find more information on the bill and/or reach out to us directly.
After legislation to repeal the Affordable Care Act was pulled from the House floor last Friday, news headlines across the country began reporting that tax reform is next on the Trump Administration’s agenda. As noted in our prior blog post, tax reform that changes the corporate tax rate, the tax-exempt bonds program and the tax-credit programs will have significant impacts on the production of the affordable housing across the country.
In an effort to protect affordable housing programs, legislators have introduced amendments to the Internal Revenue Code (“IRC”) that either (1) create savings to be reinvested in affordable housing programs or (2) expand the availability of housing tax credits and fix related technical issues.
The following bills were introduced in the past 60 days –
- The Affordable Housing Credit Improvement Act of 2017 (S. 548) (the “Cantwell-Hatch bill”). According to The Affordable Housing Tax Credit Coalition, the bill builds upon prior bills (S. 2962 and S. 3237), also introduced by Sentor Maria Cantwell (D) and Senator Orrin Hatch (R), and includes “a new provision addressing planned foreclosures, a provision raising the cap to 30 percent from 20 percent on Difficult to Develop Areas (DDAs), additional criteria for community revitalization plans, a provision which codifies, rather than leaving up to Treasury regulations, the prohibition against any state QAP from including local approval or local contribution requirements, and other technical changes.” A section by section summary can be found here.
- Affordable Housing Credit Improvement Act of 2017 (H.R. 1661). The purpose of the bill, as reported in a press release issued by co-sponsor Representative Pat Tiberi (R), is to “make the financing of affordable housing more predictable and streamlined, facilitate housing credit development in challenging markets like rural and Native American communities, increase the housing credit’s ability to serve extremely low-income tenants, and support the preservation of existing affordable housing.” The bill is co-sponsored by Representative Richard Neal (D). A section by section summary can be found here.
- Common Sense Housing Investment Act of 2017 (H.R.948). The goal of the legislation, introduced by Representative Keith Ellison (D), is to expand the mortgage interest deduction to lower income homeowners and reinvest an estimated $241 billion in savings over 10 years into affordable housing. More information on the bill can be found here.
Bi-partisan support for these bills, especially S.548 and H.R. 1661, suggest that tax reform protecting housing tax credits is good policy. Monitoring the evolution of these bills; the President’s plan for tax reform and the industry’s response to anticipated changes in the IRC will be telling of the future affordable housing programs, especially those authorized under the IRC.
Comments on the following HUD and housing related guidance are due this month.
- HOTMA implementation for Section 8 Voucher Programs – Due March 20, 2017
On January 18, 2017, HUD issued a proposed rule to implement certain sections of the Housing Opportunities through Modernization Act of 2016 (HOTMA) that affect the tenant-based Housing Choice Voucher (HCV) and Project-Based Voucher (PBV) programs. Among other changes, the proposed rule amends the definition of public housing authority (PHA) owned housing, and institutes new provisions regarding housing quality inspection requirements for both the HCV and PBV programs. HUD is seeking public comment on a variety of questions surrounding the implementation requirements and future changes of both programs.
Comments may be submitted to HUD electronically at www.regulations.gov (Docket No. FR-5976-N-03) or by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500.
- Moving to Work (MTW) Demonstration Operations Notice – Due March 24, 2017
As noted in our previous blog post, HUD is soliciting comments to its Operations Notice for the expansion of the MTW Program. The full list of questions for which HUD seeks public comment is listed in Appendix C of the Notice. Comments can be submitted electronically at www.regulations.gov (Docket No. FR-5994-N-01) or by mail to the same address noted above.
- DOJ Proposed Rule amending Section 504 Regulations – Due March 20, 2017
On January 19, 2017, the U.S. Department of Justice (DOJ) issued a notice of proposed rulemaking to revise its regulations at 28 CFR Part 42 that implement Section 504 of the Rehabilitation Act of 1973. Section 504 prohibits discrimination based on disability in all programs and activities that receive federal financial assistance. Key revisions include amending the interpretation of the applicable definition of “disability”; updating accessibility standards for new construction and alteration of buildings and other facilities; and editing various provisions and terminology to promote consistency with judicial decisions and the Americans with Disabilities Act and related amendments.
Comments may be submitted to DOJ (1) electronically through www.regulations.gov (Docket No. OAG 154); (2) by regular mail to Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-0885; or (3) by overnight, courier, or hand delivery to Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue NW., Suite 4055, Washington, DC 20005.
The following lists additional housing news our readers may have missed recently —
- Dr. Ben Carson Confirmed as HUD Secretary
On March 2, 2017, Dr. Ben Carson was sworn in as the 17th Secretary of the U.S. Department of Housing and Urban Development. According to HUD’s press release, Secretary Carson intends to embark on a listening tour of various HUD field offices and communities throughout the country.
- Affordable Housing Credit Improvement Act of 2017 introduced in U.S. Senate
In an effort to help reform the low-income housing tax credit, Senators Maria Cantwell (D-WA) and Orrin Hatch (R-UT) introduced the Affordable Housing Credit Improvement Act of 2017 (S. 548), along with several other Democratic and Republican co-sponsors on March 7th. The bill includes and expands upon similar legislation introduced by the Senators last year (S. 2962 and S. 3237). Visit the Affordable Housing Tax Credit Coalition’s S. 548 advocacy page for more in-depth summaries of the bill’s provisions and comparisons between the current bill and 2016 legislation. Interested persons can also track the bill’s progress at www.congress.gov.
- Public Housing Authorities prevail in Operating Reserves Litigation
In late January, the United States Court of Federal Claims ruled in favor of approximately 350 public housing authorities on the merits of a motion for summary judgment against the U.S. Department of Housing and Urban Development (HUD). Led by housing industry groups, the complaint alleged that HUD breached its Annual Contributions Contract with the PHAs for fiscal year 2012 when the formula used for budget calculations and allocations did not property follow HUD regulations and thus reduced the operating fund subsidies the PHAs were eligible for in that year. A full copy of the Court’s decision can be accessed here. Plaintiffs’ attorneys were advised to file a status report in February 2017 to advise how the Court should proceed with the case.
On May 5, 2015, Senators Maria Cantwell (D-WA) and Pat Roberts (R-KS) introduced the “Improving the Low-Income Housing Tax Credit Rate Act” (S. 1193), which would create a permanent 9% minimum low-income housing tax credit rate for non-tax-exempt bond-financed new buildings or substantially rehabilitated buildings, and a permanent 4% minimum rate for acquisition credits. The bill would apply to all buildings placed in service after December 31, 2014.
Co-sponsors include Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), Barbara Boxer (D-CA), Ben Cardin (D-MD), Mike Crapo (R-ID), Dianne Feinstein (D-CA), Al Franken (D-MN), Kirsten Gillibrand (D-NY), Mazie Hirono (D-HI), Angus King (I-ME), Amy Klobuchar (D-MN), Patrick Leahy (D-VT), Robert Menendez (D-NJ), Patty Murray (D-WA), Bernie Sanders (I-VT), Chuck Schumer (D-NY), Jeanne Shaheen (D-NH), Debbie Stabenow (D.MI), Elizabeth Warren (D-MA) and Sheldon Whitehouse (D-RI).
The text of the Senate bill is identical to H.R. 1142, a bill introduced by Representatives Pat Tiberi (R-OH) and Richard Neal (D-MA) in late February. Although it’s unknown at this point how either bill will fare, the fact that this legislation has been introduced in both houses of Congress illustrates the importance and value of the low-income housing tax credit program, and hopefully indicates that there is some momentum behind the enactment of permanent minimum credit rates.
Released in February, the 2016 budget set forth by the Obama administration takes a focused stance towards the country’s growing infrastructure requirements. The 2016 budget features tax-exempt bond proposals seen in the administration’s 2014 and 2015 budgets, and introduces four new bond proposals:
1) A New Category of Qualified Private Activity Bonds for Infrastructure Projects – Qualified Public Infrastructure Bonds
2) Modifications to Qualified Private Activity Bonds for Public Educational Facilities
3) Modified Treatment of Banks Investing in Tax-Exempt Bonds
4) Repealing Tax-Exempt Bond Financing of Professional Sports Facilities
The 2016 budget also encourages the financing of infrastructure by limiting tax rates for upper-income taxpayers who can use specific tax deductions, tax preferences, and interest on tax-exempt to reduce tax liability to a 28 percent maximum. The new 28 percent cap, though viewed by opponents as discouraging to the investment of tax-exempt bonds, reflects the administration’s position for broader reforms on tax expenditures.
A detailed look at the 2016 budget’s four new bond proposals and the 28 percent cap is available, along with insights into other pertinent bond proposals.
Several exciting developments have recently brought changes to the affordable housing industry and we are inviting you to explore them with us at our fifth annual Western Housing Conference. Ballard Spahr and CSG Advisors are pleased to announce this year’s Best of the West in Affordable Housing Development and Financing conference on March 13, in San Francisco. The conference features movers and shakers in affordable housing leading panels, roundtables, and discussion about the most pertinent issues and developments shaping the housing industry.
The Legislative Update Panel has its hand on the pulse of Capitol Hill. Discussion will explore the implication and future of legislation and policies that affect the affordable housing industry.
HUD’s Rental Assistance Demonstration (RAD) Program experienced a boost in governmental support with the recent cap increase. The RAD program now offers renewed opportunities for housing authorities and developers to finance, transform, and create long-term housing options for low-income residents. The RAD Panel brings together a panorama of perspectives to discuss the need-to-know policies, timelines, financing structures, and organizational approaches to the revitalized RAD program.
The Finance Trends and Innovations Panel will offer insights to new loan products, lender programs, and interest rate structures taking shape in affordable housing finance. The discussion will examine new funding sources as a strategic means to preserve and sustain affordable housing.
Roundtable forums will feature Year 15 challenges and the implications of Fair Housing: Disparate Impact. Discussion will examine these two important topics and provide strategies, considerations, and expectations for the future of affordable housing development and management.
It is our privilege to create such an informative and collaborative forum for dialogue, exploration, and networking within an industry about which we feel so passionate. Though we will certainly blog about conference updates and insights, we hope you will join us in person.
The Senate passed the “Tax Increase Prevention Act of 2014” (H.R. 5771) on Tuesday night just before Congress adjourned for 2014. As Molly Bryson described in her December 5, 2014 post following the House’s passage of the bill, the tax extenders package provides a one-year retroactive extension of certain tax provisions that expired at the end of 2013. Some specific extensions that are of interest to the tax credit community include the following:
extension of 9% tax credit floor for low-income housing tax credit allocations made prior to January 1, 2015
extension of $3.5 billion in allocating authority for new markets tax credits for the calendar year 2014 round
extension of the production tax credit for wind and certain other renewable energy projects that begin construction in 2014
extension of 50% bonus depreciation for certain new equipment placed in service in 2014 (2015 for certain longer period production property)
The extent to which this legislation is beneficial really depends on the type of tax incentive involved. This is a boon for the new markets tax credit community, because it guarantees another full $3.5 billion round of funding. The benefit to renewable energy projects is less clear, as eligibility for the production tax credit is subject to a year-end construction commencement deadline. It’s also not clear how many affordable housing projects will really benefit from a 9% credit floor this late in the tax credit allocation season. In any event, January 1, 2015, when these tax extenders expire, is going to feel a lot like January 1, 2014. It will be interesting to see if this two-week extenders package becomes the poster child for the need for permanent tax reform.
We are excited that Molly Bryson has joined the firm and our Housing Plus team. Molly is an accomplished tax credit attorney with extensive experience in the financing and development of low-income housing communities and renewable energy initiatives. She guides major banks and companies with structuring their investments in affordable housing and solar energy using tax credits and commercial and subsidized financing. Her representations also extend to investors and sponsors of residential and commercial solar energy projects.
Molly is looking forward to blogging for Housing Plus. She brings keen insights to how various regulatory and financing aspects of the affordable housing and green energy industries mesh and work together. She maintains dynamic relationships with the IRS, HUD, the SEC, state housing agencies, housing authorities, tax-exempt organizations, and trade associations. Additionally, she offers a nuanced understanding of state and city financing documents and tax-exempt bond matters, and prepares tax opinions for Low Income Housing Tax Credit and Investment Tax Credit transactions. Molly is seen as a leader in her practice and home community of Washington, D.C.
In her spare time, Molly enjoys studying Italian, traveling, and hiking. In fact, she has summited Mount Kilimanjaro – Africa’s highest peak. Both in and out of work, she brings energy, enthusiasm, and invaluable perspectives to the challenges around her. We are thrilled to have Molly with the firm and on our Housing Plus team.