N.Y. Comp. Codes R. & Regs. tit. 21 § 2188.3

Current through Register Vol. 46, No. 36, September 4, 2024

Section 2188.3 - HFA Private Activity Bond Credits Allowance Process

(a) Under New York State's overall tax credit allocation process as it pertains to the HFA, the Agency typically allows Private Activity Bond Credits to qualified residential rental projects located in New York State financed by obligations subject to the Private Activity Bond Cap, the interest on which is exempt from federal income tax as provided in Section 42(h)(4) of the Code. Applications for Private Activity Bond Credits for projects financed by the Agency are therefore only made as part of the Agency's overall financing application process as described in (c) through (g) below. Applications for the allowance of As of Right Credits to projects financed by tax exempt bonds from an issuer other than the Agency are governed by the provisions of (h) of this section.

(b) Applications for HFA financing and/or 4% LIHTC through the Agency will be accepted and processed as they are received throughout the year. There is no separate LIHTC application fee for applicants who are also applying for HFA financing.

(c) Preliminary underwriting information must be submitted in the form required by the Agency.

(d) The preliminary underwriting information, additional material required by the Agency as part of the HFA financing application and the appropriate Due Diligence reports to be obtained by the Agency, will serve as the application for LIHTC from HFA.

(e) Upon, or before, completion of the phase of underwriting prior to submission to the Members, the following actions are taken and reviews are performed:

(1)

(i) The first of three LIHTC Underwritings and Feasibility Reviews required by

IRC §42(m)(2)(C) is performed.

(ii) If the eligible basis of all the buildings in a project divided by the number of units in a project, prior to any increase for buildings in high cost areas under IRC §42(d)(5)(B) exceeds the Per Unit Eligible Basis Limit, the eligible basis shall be reduced to the maximum eligible basis permitted by the Per Unit Eligible Basis Limit unless the Per Unit Eligible Basis Limit requirement has been waived or is not applicable to the project.

(2) All applicants must meet the Threshold Eligibility Requirements listed below.

(3) If an applicant for Private Activity Bond Credits meets the Threshold Eligibility Requirements listed below, the application is consistent with this QAP and the application may be considered by the Members for approval of an allocation of Private Activity Bond Credits.

(f) After a project receives the Members' Approval, and after all relevant requirements in the applicable Term Sheet, and Members' Approval are met, the second LIHTC Underwriting and Feasibility Review required by Section 42 is performed prior to the financing for the project.

(1) If the eligible basis of all the buildings in a project divided by the number of units in a project, prior to any increase for buildings in high cost areas under IRC §42 (d)(5)(B), exceedsthe Per Unit Eligible Basis Limit, the eligible basis shall be reduced to the maximum eligible basis permitted by the Per Unit Eligible Basis Limit unless the Per Unit Eligible Basis Limit requirement has been waived or is not applicable to the project.

(2) Projects financed by tax exempt obligations of the Agency and expected to receive Private Activity Bond Credits will receive a 42(m) Letter prior to the issuance of the tax -exempt obligations.

(3) Projects which have received a Members' Approval of State Credit Ceiling LIHTCs will be issued a Binding Agreement prior to the financing of the project. The Binding Agreement must be executed by the applicant and returned to the Agency prior to the financing. If a project is not financed by the Agency, the Binding Agreement will incorporate all relevant terms usually contained in Agency financing documents including the setting of appropriate fees.

(g) Projects receiving State Credit Ceiling LIHTC must be placed in service during the calendar year of allocation or obtain a Carryover Allocation Document.

(1) The Cost Certification required to obtain a Carryover Allocation Document must in form and substance acceptable to the Agency.

(2) The Cost Certification must be filed with the Agency by the later of the date which is eleven months after the date that the allocation was made, unless the Agency grants an extension of time in writing to file this Cost Certification.

(h) The third and final LIHTC underwriting and Feasibility Review required by Section 42 is performed prior to the issuance of the IRS Form or Forms 8609, Low Income Housing Credit Allocation Certification.

(1) All projects must provide the Agency with Certificates of Occupancy or Temporary Certificates of Occupancy as they are issued.

(2) The third and final LIHTC underwriting and Feasibility Review must be based on a final Cost Certification satisfactory to the Agency in form and substance and in all ways in compliance with IRC §42.

(3) The final Cost Certification must be filed with the Agency within 120 days after the end of the first year of the credit period for the building within a project with the latest credit period. The Agency may extend this period in its sole discretion.

(4) Form or Forms IRS 8609 formally allocating any LIHTC will not be issued until after the third and final LIHTC underwriting and Feasibility Review, based on a final Cost

Certification satisfactory to the Agency in form and substance and in all ways in compliance with IRC §42, is completed.

(5) If the eligible basis of all the buildings in a project divided by the number of units in a project, prior to any increase for buildings in high cost areas under IRC §42(d)(5)(C), exceeds the Per Unit Eligible Basis Limit, the eligible basis shall be reduced to the maximum eligible basis permitted by the Per Unit Eligible Basis Limit unless the Per Unit Eligible Basis Limit requirement has been waived or is not applicable to the project.

(i) Projects Financed By Other Issuer's Private Activity Bonds.

(1) Projects financed by tax-exempt bonds from an issuer other than the Agency subject to the Private Activity Bond Volume Cap in accordance with IRC §42(h)(4)(A) may be allowed LIHTC which is not taken into account under the State Credit Ceiling. The Agency's Commissioner/CEO, or his or her designee, is hereby authorized to take any actions necessary and appropriate to allow LIHTC to qualified residential rental projects located in New York State that are financed by the proceeds of tax-exempt bonds of an Other Issuer subject to the Private Activity Bond Volume Cap, where such allowance is consistent with this QAP.

(2) Complete applications for the allowance of such LIHTC must be submitted at least 60 days prior to the later of the (i) proposed construction start date or (ii) planned bond sale date in a form approved by the Agency and will be accepted and processed throughout the calendar year. The Agency may request any and all information it deems necessary or appropriate for project evaluation. If, in the Agency's sole discretion, any submission is incomplete or if documentation is insufficient to complete any evaluation of the proposed project, processing will be suspended. In such instances, the Agency will notify the respective applicant of how the submission is incomplete and provide at least ten business days for the applicant to submit the requested documentation. Complete applications will be reviewed relative to criteria contained herein at § 2188.5 for eligibility and public purpose. Within 60 days after receipt of a complete application the Agency will issue to the applicant a finding as to whether the application is consistent with this QAP and the amount of LIHTC for which the project qualifies pursuant to Financial Feasibility Review. If the application is consistent with this QAP, the applicant will receive processing instructions for a final allocation of credit. If the project is found to be inconsistent with this Plan, the owner will be notified of the reasons for such finding.

(3) The Agency shall charge a reasonable application fee, due at the time of application. A credit allocation fee, in a reasonable amount determined by the Agency, also is due upon request for issuance of IRS Form 8609.Not-for-profit applicants (or their wholly-owned subsidiaries) which will be the sole general partner or partners of the partnership/project owner or sole managing member or members of the limited liability company/project owner may request and be approved for deferral of payment of the application fee until the construction closing date. All fees shall be published on the Agency's website, https://hcr.ny.gov/.

(4) In accordance with IRC §42(m)(2)(D), the issuer of the tax exempt bond financing a project is responsible for determining the dollar amount of LIHTCs which is necessary for the financial feasibility of such project and its viability as a qualified low-income housing project pursuant to Section 42(g)(1) of the Code throughout the applicable credit period. Such determination must be included in the applicant's request to the Agency for a final allocation of credit. The Agency will process requests for a final allocation of credit within 60 days after the date of receipt of all required documentation including an executed credit regulatory agreement in a form satisfactory to the Agency with proof of recording. The Agency will apply the criteria for Feasibility Review and LIHTC Underwriting, as described herein at § 2188.5(d), in determining the amount for the final credit allocation with respect to such project.

(5) Regulatory Term. The regulatory requirements of projects receiving an allocation or allowance of LIHTC under the terms of this Plan are described in § 2188.4 of this Plan and shall be subject to compliance monitoring as described in § 2188.6 of this Plan.

(6) All applicants must meet the Threshold Eligibility Requirements listed below.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 2188.3

Amended New York State Register May 26, 2021/Volume XLIII, Issue 21, eff. 5/26/2021