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

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

Structure Investor LP $$$ Syndicator GP Investment Partnership LP Local GP Developer Operating Partnership

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

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

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%

Applicable Percentage (contd) Owners 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

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

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)

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

4% Acquisition Credit (contd) Certain Placements in Service Ignored – Carryover Basis – Acquired from Decedent – Placement in Service by Governmental Unit or Non- Profit Entity – Foreclosure

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

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

Basis Calculations Start with Eligible Basis, then Qualified Basis

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)

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

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

Low Income Units (contd) 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

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

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

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)

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%)

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

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

Equity Calculation (contd) 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

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

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)

Recapture (contd) Recapture on Change of More Than 1/3 in Ownership or Sale of Project Bond Posting Procedure New Owner Steps into Sellers Shoes Upon Sale of Project

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

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

Qualified Contract (contd) 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

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

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 STATE ALLOCATION VOLUME LIMIT

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 States Limitation of Aggregate Tax Credits

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

Additional QAP Rules QAP Must Provide Procedure for Notifying IRS of Non-Compliance Bond Financed Projects Must Satisfy QAP

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

Project Evaluation (contd) 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

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

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

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