N.Y. Comp. Codes R. & Regs. tit. 21 § 2188.8

Current through Register Vol. 46, No. 45, November 2, 2024

Section 2188.8 - Miscellaneous Provisions

(a) Subsidy Layering Review: Applicability.

(1) Certain projects that receive LIHTC are subject to a process called "subsidy layering review." Pursuant to Section 102(d) of the Department of Housing and Urban Development Reform Act of 1989, 42 U.S.C. § 3545(d), the Department of Housing and Urban Development ("HUD") is required to ensure that housing projects are not awarded excessive subsidies by combining "HUD Housing Assistance" with "Other Government Assistance."

(2) The review process whereby HUD ensures against excessive subsidy is termed "subsidy layering review." Every project with HUD Housing Assistance and LIHTC is subject to subsidy layering review. Note, however, that the mere transfer of existing HUD Housing Assistance (such as a Section 236 Contract or a HAP Contract) does not trigger subsidy layering review. Only the award of new HUD Housing Assistance (combined with Other Government Assistance) triggers the review.

(3) Pursuant to Section 911 of the Housing and Community Development Act of 1992, 42 U.S.C. § 3545 note, state or local agencies may elect to undertake subsidy layering review on behalf of HUD for projects that receive LIHTC. The Agency has elected to undertake subsidy layering review when allowable.

(b) No Recourse or Reliance. No provision of this QAP shall be the basis for any claim against the Agency or any Member, officer or employee of the Agency. The QAP may be amended at any time, and such amendment may be prospective or retroactive. The QAP may also be applied as necessary and convenient in response to federal or state mandates.

(c) Information Requests. Requests for information made under the Freedom of Information Law must be forwarded to Freedom of Information Officer, New York State Housing Finance Agency, 641 Lexington Avenue, New York, NY 10022.

(d) Any and all changes in the ownership interests or principals of any project (prior to issuance of IRS Form 8609) for which an application has been submitted to HFA, will be subject to the approval of the Agency which reserves the right to disallow any application where there have been changes in the ownership interests or principals.

(e) Requests for a Qualified Contract during the period such a request is permitted under Code §42(h)(6). This section only applies to projects in which the project owner has a regulatory agreement executed by the Agency which specifically grants the right to request a qualified contract. A project owner may request only in writing, by certified mail to HFA to the attention of the LIHTC Monitoring Officer, that HFA produce a qualified contract from a buyer who will continue to operate the building(s) for low income use. A request for a qualified contract shall be an irrevocable offer to sell during the applicable one year period. If HFA presents a qualified contract during the above one year period, such qualified contract shall confer upon the buyer an exclusive right to purchase the project. For the purpose of determining the value of a qualified contract, "cash distributions from (or available for distribution from) the project" as set forth in the Code shall include management incentive fees paid or due to anyone who at any time after the issuance of an IRS Form 8609 had any ownership interest in the project. The Agency will specify the checklist of items required to be submitted as part of a Request for a Qualified Contract. A nonrefundable fee, in a reasonable amount determined by the Agency, is due upon submission of a Request for a Qualified Contract. The owner shall be required to pay for any services reasonably determined by HFA to be necessary for the technical review of a Request for a Qualified Contract to an accountant, appraiser or other relevant expert.

(f) All projects shall at all times maintain adequate records, in the Agency's sole discretion, concerning vacancies. These records should be updated at least monthly and, upon HFA's request, provided to the Agency in order to maintain the State's ability to quickly respond to natural disasters and other emergencies.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 2188.8

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