[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-4246] [[Page Unknown]] [Federal Register: February 25, 1994] _______________________________________________________________________ Part V Department of Housing and Urban Development _______________________________________________________________________ Office of the Assistant Secretary for Housing--Federal Housing Commissioner _______________________________________________________________________ Administrative Guidelines; Limitations on Combining Low Income Housing Tax Credits With HUD and Other Government Assistance; Notice DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Office of the Assistant Secretary for Housing--Federal Housing Commissioner [Docket No. N-94-3722; FR-3334-N-01] Administrative Guidelines; Limitations on Combining Low Income Housing Tax Credits With HUD and Other Government Assistance AGENCY: Office of the Assistant Secretary for Housing--Federal Housing Commissioner, HUD. ACTION: Notice of Administrative Guidelines to be Applied in Implementing the Requirements of Section 911 of the Housing and Community Development Act of 1992 (HCDA '92), (42 U.S.C. 3545 note) and Section 102 of the Department of Housing and Urban Development Reform Act of 1989 (HRA '89), (42 U.S.C. 3545). ----------------------------------------------------------------------- SUMMARY: This document sets forth the Administrative Guidelines which qualified Housing Credit Agencies (HCAs), as defined under Section 42 of the Internal Revenue Code of 1986, must follow in implementing the requirements of Section 911 of HCDA '92. HUD Field Offices will also follow these Guidelines, in accordance with HUD instructions, which will be made available to HUD Field Offices at the time these Guidelines are effective. These Guidelines were designed to ensure that participants in multifamily projects do not receive excessive compensation by combining sundry HUD Housing-administered program assistance with assistance from other Federal, State, or local agencies (Other Government Assistance) and/or low income housing tax credits (LIHTCs). DATES: Comment due date: April 26, 1994. Effective Date: February 25, 1994. ADDRESSES: Interested persons are invited to submit comments regarding this Notice to the Rules Docket Clerk, Office of General Counsel, room 10276, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410. Communications should refer to the above docket number and title. All comments will be available for public inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address. FOR FURTHER INFORMATION CONTACT: For questions, write to the attention of Helen Dunlap, Deputy Assistant Secretary, Multifamily Housing Programs, room 6106, or call (202) 708-2495. Please note that this phone number is not toll free. SUPPLEMENTARY INFORMATION: This document sets forth the Administrative Guidelines which qualified Housing Credit Agencies (HCAs), as defined under Section 42 of the Internal Revenue Code of 1986, must follow in implementing the requirements of Section 911 of HCDA '92. HUD Field Offices will also follow these Guidelines, in accordance with HUD instructions, which will be made available to HUD Field Offices at the time these Guidelines are effective. These Guidelines were designed to ensure that participants in multifamily projects do not receive excessive compensation by combining sundry HUD Housing-administered program assistance with assistance from other Federal, State, or local agencies (Other Government Assistance) and/or low income housing tax credits (LIHTCs). HUD Housing assistance includes at least the following: Project- Based Certificates; Mortgage Insurance; Capital Advances; Mortgage Relief (i.e., Partial Payments of Claims); HUD Refinancing of a HUD- assisted project; Prepayment Plans of Action; Section 8 Rent Increases or Contracts for New or Additional Units; Flexible Subsidy; Foreclosure, Negotiated, or Competitive Sales; Section 8 Project-Based Certificate projects; Section 8 Moderate Rehabilitation and Single Room Occupancy Moderate Rehabilitation and any other HUD Housing-approved Source which pays for what these Guidelines allow as a project Use. See 24 CFR 12.50 for a more complete list of types of HUD assistance, and 24 CFR 12.32 for aggregate amounts which necessitate applicant disclosure. Other Government Assistance includes at least the following: Grants/Loans from a Federal, State, or Local source; Low Income Housing Tax Credits (LIHTCs) or Historic Tax Credits received from a Housing Credit Agency (HCA); Tax-Exempt Bond Financing received from a Housing Finance Agency, with or without tax credits; State Housing Tax Credits received in connection with the project; and any other governmental Source which pays for allowable project Uses. Other Government Assistance is defined as ``any loan, grant, guarantee, insurance, payment, rebate, subsidy, credit, tax benefit, or any other form of direct or indirect assistance from the Federal Government, a State, or a unit of general local government, or any agency or instrumentality thereof.'' 24 CFR 12.30 These Guidelines also advise qualified HCAs having tax credit allocation authority of how they may fulfill section 911, HCDA '92 requirements to carry out the responsibilities of Section 102(d) of the HUD Reform Act for projects receiving HUD-housing assistance and receiving or allocated LIHTCs by certifying that the sum total of all assistance awarded to an individual project ``shall not be any more than is necessary to provide affordable housing.'' The Guidelines should make the subsidy layering review process more efficient for housing industry participants who rely on the LIHTC, combined with HUD and possibly other forms of Other Government Assistance, to produce low income housing. Readers may note that the primary emphasis throughout this publication is on HUD mortgage insurance and HCA LIHTC assistance. However, combination of these and other forms of HUD Housing- administered and Other Government Assistance is possible, and is also subject to the same limitations discussed herein, as administered in conjunction with HUD's Instructions. In accordance with section 911, however, HCAs can only perform the subsidy layering function for projects that are at least receiving HUD housing assistance and are receiving or allocated a LIHTC. Below are relevant dates and HUD contacts, followed by the Procedural Description, Guideline Standards, Glossary, and related Attachments. The Office of Housing currently applies previously published Guidelines (See Federal Register dated April 9, 1991 at 56 FR 14436) and other instructions to project submissions received as of this date. Section 911 of HCDA '92 provides that for projects receiving HUD assistance and receiving or allocated LIHTCs, HCAs may perform the subsidy layering review function originally assigned to HUD under section 102 of HRA '89 (42 U.S.C. 3545) provided they certify to HUD that they will properly apply the Guidelines which HUD establishes. HCAs must also certify pursuant to Guidelines established for section 911 implementation that the total assistance provided to any one project is not more than is necessary to provide affordable housing. This publication establishes such Guidelines effective immediately. HUD will follow these Guidelines for LIHTC projects in cases where an HCA has not been delegated section 911 authority or where an HCA has had its section 911 authority revoked by HUD. HUD has reserved until this time implementation of its regulations at 24 CFR part 12, subpart D (as well as implementation of conforming changes made to HUD's program regulations) for subsidy layering review of Non-LIHTC projects under Section 102 of HRA '89. These regulations are now fully effective by publication of these Guidelines for all forms of Other Government Assistance combined with HUD assistance. These Guidelines are immediately effective and supersede HUD's previously published notices, memoranda, and Administrative Guidelines relating to tax credits and subsidy layering. For cases involving FHA mortgage insurance, only projects which have not reached final endorsement may be reviewed by HCAs pursuant to Section 911 of HCDA '92 and in accordance with these Guidelines. If the Sponsor submitted Attachment #4, Form HUD-2880, ``Applicant/Recipient Disclosure/Update Form,'' to HUD with its mortgage insurance application and indicated no intention to apply for or receive LIHTCs, and the application has been processed through to a commitment as of this date, and the Sponsor now submits Form HUD-2880 revisions indicating application for or receipt of LIHTCs, then a ``significant deviation'' from the Form HUD-92013, ``Application for Multifamily Housing Project,'' is proposed, and new processing fees are required (See Procedural Description below for cases processed hereafter indicating application for or receipt of LIHTCs). As noted, instructions detailing HUD responsibilities for monitoring HCA subsidy layering review activities, and also for performing section 102 responsibilities in cases where HCAs cannot or elect not to, will be effective and applied by the Field Office at the time of publication of this notice. HUD will consider public comments on these Guidelines, and make a final revision effective by publication following the 60-day comment period. Thereafter, HUD may annually review numerical standards throughout these Guidelines, or more frequently as market conditions dictate, and make any adjustments deemed necessary. The Office of Public and Indian Housing (PIH) will be publishing a separate set of guidelines which will apply to Section 8 Moderate Rehabilitation projects developed under 24 CFR part 882, subparts D and E, and the Project Based Certificate projects developed under part 882, subpart G. However, until such time as PIH's guidelines are published, these guidelines will be used to determine necessary assistance when reviewing tax credit proposals related to the Section 8 Moderate Rehabilitation and Project Based Certificate programs. For more information, please contact G. DeWayne Kimbrough, Rental Assistance Division, Office of Assisted Housing, PIH, (202) 708-7424; TDD: (202) 708-0850. The Office of Special Needs Assistance Programs (SNAPS), of the Office of Community Planning and Development, will issue its own set of guidelines, tailored to its individual programs. Until that time, subsidy layering reviews for the Section 8 Moderate Rehabilitation SRO program will continue to be conducted at Headquarters. For these reviews, SNAPS will generally adopt the standards contained in the Office of Housing's revised guidelines published below. For more information, please contact Mark R. Johnston, Deputy Director, SNAPS, (202) 708-4300; TDD: (202) 708-2565. Procedural Description Intent to Participate An interested HCA must signal to the HUD Field Office with jurisdiction (i.e., the applicable HUD Office which performs full Multifamily functions for the area) its intent to conduct the Section 911 review procedure by sending a brief letter, executed by an authorized official of the HCA informing HUD that it: (1) Has reviewed Section 911 and these Administrative Guidelines; and (2) understands its responsibilities under the Section 911 and the Guidelines; and (3) certifies that it will perform the Section 911 review process in accordance with all Statutory, Regulatory, and Guideline requirements. An individual HCA's questions or requests for clarification relating to Section 911 implementation should be addressed to HUD Headquarters, and should be answered by HUD prior to that HCA's notification to the HUD Field Office of its intent to accept Section 911 authority. Where there are no outstanding issues affecting an individual HCA's understanding of the Guidelines, and in all States or areas where a qualified HCA having tax credit allocation authority has so notified HUD of its intention to participate, HUD will delegate the authority to perform the Section 911 review, and shall confirm its delegation by the Field Office's written acknowledgement to the HCA. This means that for all projects receiving or allocated tax credits as well as (where present) other forms of other government assistance, combined with some form of HUD assistance, participating HCAs will conduct a subsidy layering review to determine whether any excess subsidy is being provided. Such an HCA will check allowable Sources against allowable Uses, and reduce the subsidy Source within its control--i.e., the total tax credit allocation amount--whenever necessary to balance a project's Sources and Uses Statement. If an HCA is unable to award the full amount of the tax credits requested to a particular project after application of its selection criteria, or because only limited allocation authority and resources exist, then the HCA should reflect that ``Additional Equity'' is required of the Sponsor on the Sources and Uses Statement, and also indicate this on the Attachment #1 Certification provided to HUD. Note: These are the two primary lines of Attachment #2, Required Format--Section 221 Sources and Uses Statement or #3, Required Format--Section 223(f) Sources and Uses Statement, as applicable, which require HCA analysis and input for mortgage insurance cases. Other ``Uses'' lines appearing near the bottom of the Statement which are payable by Sources other than HUD mortgage insurance may, however, also require some analysis and calculation. HUD Field Offices will perform Section 102 subsidy layering review functions using HUD Instructions for all projects located in states or areas where the HCA having allocation authority has declined to accept Section 911 authority, has not registered its intent with HUD and been delegated the Section 911 authority by HUD, as described above, or has been revoked by HUD for non-compliance with the Statute or implementing Guidelines and instructions. Typical Sequence of Events Sponsors wishing to combine HUD assistance and HCA tax credit assistance are encouraged to initially apply to HUD. Attachment #4, Form HUD-2880, must accompany all applications. Generally, applicants should know the level of approved HUD assistance before applying to the HCA for tax credit assistance; otherwise, the HCA's determination of the necessary allocation amount and its Section 911 responsibilities will have to be repeated. HCAs may wish to consider this policy for projects combining HUD mortgage insurance and HCA LIHTC assistance: that only those which have already received a HUD commitment may apply for a tax credit allocation (But see Attachment #6 caveats and exceptions to the general sequential order and such a policy for other forms of HUD assistance). In all cases, HUD will process applications in accordance with the applicable program's outstanding Handbook procedures and instructions. For example, Section 221 new construction or substantial rehabilitation mortgage insurance applications will be completely processed in accordance with an assumed level of ``set-aside'' units (See Attachments #4 and #5), where either tax credits will be sought or a reservation has been obtained. HUD will make its best efforts, with all available qualified staff, to process assistance requests in a timely manner. HUD will also qualify its mortgage commitments, making them dependent upon HCA determinations (See HUD Assistance Adjustment below). Sponsors which have received a commitment for HUD mortgage insurance should include all processing and financing details in their application materials to an HCA. When LIHTC applicants are able to show an HCA HUD's processing details and results--including estimated mortgage amounts, replacement costs, and cash requirements--the HCA will be in a better position to review the project's tax credit requests and needs, and make an appropriate allocation to selected projects in accordance with its own criteria. Initial HCA Allocations For every project selected to receive HCA tax credit assistance combined with HUD assistance, HCAs must establish a Net Syndication Proceeds Estimate on a case-by-case basis (See Glossary definition). The Net estimate used must be no greater than is necessary to balance the Sources and Uses Statement. Therefore, an HCA may wish to work in reverse, completing the Uses portion of the Statement, and the known other Sources, before establishing the Net Syndication Proceeds ``gap filler'' needed. The HCA may add to this Net Proceeds amount estimated Syndication and Bridge Loan Expenses to ``build up'' to an estimated sum of the total allocation needed. The sum total allocation estimated to be necessary in these cases may be less than the amount the HCA otherwise generally estimates based on the applicable credit percentage and eligible project costs. The HCA may reconcile the difference (alter the estimated allocation necessary) by either lowering the credit percentage, or, by lowering the number of units eligible for the credit. Generally, HCAs should reduce the credit percentage for such projects, because a reduction in the number of eligible units affects the unit set-aside percentage, and, the net estimate of what investors of the syndication would pay, creating circular recalculation problems. Lowering the number of eligible units which HUD has initially agreed are marketable should be avoided unless the HCA projects absorption difficulties HUD did not recognize earlier in processing. HCAs should also use past syndication data and current market and industry sources of data to assist them in determining accurate Net Syndication Proceeds Estimates and necessary allocation amounts for an individual project. However the HCA chooses to analyze the problem and estimate Net proceeds, where the initial estimation of Net Syndication Proceeds indicates that total Sources exceed total Uses, estimated necessary allocations should be reduced proportionately and commensurately to balance the Statement prior to making actual allocation awards to, and executing allocation agreements with, the Sponsor. HCAs should assume that the Sponsor retains no more than a 1-5 percent ownership in the project pursuant to its General Partnership capacity in a syndication to Limited Partners. HCAs must examine syndication and partnership documentation to determine what the Sponsor's interest will be. Where greater than a 5 percent ownership interest will be retained, the HCA must assume a Net Syndication Proceeds estimate as if only a 5 percent interest was being retained. Initial allocation determinations shall be conveyed by an HCA to HUD on Attachment #2 or #3 for mortgage insurance cases, along with an initial Attachment #1 Certification. Standards and Certification There are basically two standards the HCA may choose to apply before making its Certification: ``Safe Harbor'' or ``Ceiling.'' If all applicable Safe Harbor standards (See Guideline Standards below) are met, the allocation and Section 911 Certification are exclusively within the HCA's authority to make and relay to HUD. But if a Safe Harbor standard is exceeded, then HCAs must submit a Special Authority Request, together with supporting data and rationale justifying the deviation up to an ``Absolute Ceiling'' amount, to the HCA's Governing Board for review and approval (or Approving Authority where no existing Governing Board oversees the HCA). The Governing Board or Approving Authority must conduct a public hearing for all Special Authority Requests prior to approval. The Board may Approve the Request, Approve the Request Subject to Modification, or Reject the Request, making findings by signed Resolution. After the Governing Board has returned its decision, HCAs shall make adjustments in accordance with it, allocate tax credits to balance the Sources and Uses Statement, make its Section 911 Certification to HUD, and forward to HUD the applicable Sources and Uses Statement and Governing Board's executed Resolution finding to exceed a Safe Harbor Standard(s), in cases where the Governing Board approves the Special Authority Request (with or without modification) to exceed the Safe Harbor Standard(s). Sponsor's Additional Equity Contributions Where no additional allocation authority exists to meet estimated allowable project Uses, HCAs should reflect the additional equity required of the Sponsor to balance the Sources and Uses Statement. The HCA must submit this Statement to HUD together with its Section 911 Certification so that HUD may determine the Sponsor's ability to meet such cash requirements prior to initial closing for mortgage insurance cases, or contract execution for all other cases involving preliminary HUD assistance approval. HUD Assistance Adjustment If a project does not receive the allocation anticipated and assumed in HUD processing of the original request--for example, only 40 percent of the units receive tax credits and are set aside for low income use, while the HUD processing assumption was 100 percent--then the HCA will advise HUD through its Attachment #1, Section 911 Certification; the sponsor must submit an updated Attachment #4, Form HUD-2880; and the mortgagee must submit an amended Form HUD-92013. In the case of a lower set aside, HUD will re-estimate income assuming the rents reflected on Line 1 of Form HUD-92264-T, ``Rent Estimates for Low or Moderate Income Units in Non Section 8 Projects Involving Tax Exempt Financing or Low Income Housing Tax Credits,'' Attachment #5, for units not being set aside. This Form HUD-92013 application revision does not constitute a ``significant deviation,'' and no new fees will be required. If a higher set-aside than that assumed by HUD in processing is awarded, then HUD will similarly re-estimate income assuming the rents reflected on Line 6 of Form HUD-92264-T for the additional rent restricted units. Operating Expense estimates may be affected by varying set-aside assumptions. Revised set-aside assumptions can result in either an increase or a decrease in the maximum insurable mortgage depending on whether the set-aside proportion assumption has been decreased or increased, and the effect that this has on rents and expenses. More significantly, projects with set-aside assumptions different from those initially assumed by HUD may be subject to different overall market need or economic feasibility conclusions. In the event the HCA awards more or fewer tax credits to the project than amounts originally assumed by HUD in processing, HUD may revise its market need analysis and conclusion. HUD's market need analysis should assist HCAs in determining whether, and to what extent, set-aside assumptions may be changed without altering, or perhaps completely eliminating, HUD mortgage insurance assistance. HUD's Office of Housing Management will similarly determine and convey in preliminary approvals whether varying set-aside proportions can be acceptably combined with HUD assistance it administers. HUD will reserve the right in its mortgage insurance commitments to reconsider all underwriting conclusions affected by changes in LIHTC assumptions. For example, HUD will recalculate its operating deficit estimate if the set-aside proportion changes, and this estimate may either increase or decrease depending on the relative absorption rates and rent and expense levels of market and unsubsidized rent-restricted units. Working Capital requirements may change. Where fewer tax credits are awarded, HUD will gauge the effect on unmet cash requirements. In short, these caveats mean that the commitments issued in conjunction with this procedure will be highly qualified. EMAS or Valuation recommendations to reject revised applications due to lack of market need, or Mortgage Credit rejection recommendations on the basis of unmet cash requirements, must be anticipated by Sponsors. HUD may unilaterally modify commitment terms, or cancel its commitment altogether, if original HUD processing assumptions associated with LIHTCs subsequently change. Allocation Adjustments HCAs must advise HUD of any adjustments made to its initial allocation in a timely manner. HUD must advise HCAs of any changes in estimated project uses or HUD controlled assistance also in a timely manner. For example, positive construction change-orders, occurring during construction and approved by HUD, may change estimated project uses. Similarly, HUD's mortgage amount is subject to change at cost certification. Therefore, HUD must transmit the results of its cost certification procedure to HCAs in a timely manner so that HCAs may complete the final review. An HCA must submit a final Section 911 Certification and balanced Sources and Uses Statement after HUD's cost certification procedure is completed. Thus, the HCA's third and final stage of review at placement in service will be delayed until cost certification results have been received from HUD. Subsequent to the placement in service date of any of the project's units or HUD's final endorsement date, whichever occurs first, the HCA may not revise the rent restricted unit set-aside proportion without the HUD Field Office's prior approval. HUD Monitoring As discussed above, HCAs must submit Section 911 Certifications and Sources and Uses Statements for all projects to HUD Field Offices. HCAs must allow designated HUD personnel, including the Office of Inspector General, access to all HCA Section 911 subsidy layering records and on- site inspection of the same. HUD Field Offices will, in accordance with instructions issued to them, monitor for Guideline compliance, correspond with HCAs concerning any review deficiencies, and make determinations regarding the HCA's Section 911 authority to continue performing subsidy layering reviews. HCAs may appeal Field Office determinations to revoke Section 911 authority to Headquarters. Similarly, any cases involving deficiencies in HCA Governing Board decisions may be appealed to Headquarters for final determination. Guideline Standards Separate Standards Appear Below If all Safe Harbor standards are met, the HCA may make its tax credit allocation and Section 911 Certification, and directly submit these and the Sources and Uses Statement to HUD. But if any Safe Harbor standard is exceeded, HCAs must submit Special Authority Requests to the HCA Governing Board as outlined above. Applicability Exceptions An HCA may grant a limited number of exceptions to the standards referenced below, i.e., it may exclude the greater of either 5 individual projects or 10 percent of the total number of projects which the standards apply to in a single calendar year from any or all of the standards below. These exceptions should be granted in a consistent manner (i.e., that in granting exceptions projects with similar characteristics shall be treated consistently). Also, there should be a rational basis to support any project being excepted from Guideline Standards, while another is not. All exceptions must be approved by the HCA Governing Board under the procedures previously described for Special Authority Requests. For example, a small project of 5-20 units may receive a Builder's Profit of greater than 6 percent as one exceptional case, if approved by the Board. As another example, a project located in a qualified census tract may receive a Developer's Fee of greater than 15 percent and may incur Syndication Expenses for private placement of greater than 12 percent of gross proceeds as a second exceptional case. Additionally, for these cases, the HCA will determine that the amount of equity capital and the project costs satisfy the mandates in section 911(b) of the HCDA '92. 1. Builder's Profit Safe Harbor Standard Where there is no Identity-of-Interest (See Glossary) between the Builder and the Sponsor/Developer, the Builder's Profit may not exceed HUD's estimate reflected on Line G44 of Form HUD-92264, ``Rental Housing Project Income Analysis and Appraisal.'' Where there is an Identity-of-Interest, the combined Builder's Profit and Sponsor's Profit/ Developer's Fee is limited to BSPRA, as reflected on Line G68. Such allowances may be reflected by the HCA on the Mortgageable Replacement Cost Uses portion of the Sources and Uses Statement. Alternatively, HCAs may reflect no Builder's Profit or BSPRA on the Mortgageable Uses portion of the Statement, and may instead reflect up to 4 percent of Total Development Costs (See Glossary) under the Non- Mortgageable Uses portion of the Statement. Ceiling Standard Following the alternative funding pattern above, the HCA may reflect Builder's Profit of up to 6 percent of Total Development Costs under the Non-Mortgageable Uses portion of the Statement where approved by the Governing Board or Approving Authority. Note: The Safe Harbor and Ceiling Alternatively-funded Standards may be raised from the 4 and 6 percent levels, if the HUD Field Office having jurisdiction approves of an increase, and establishes new Safe Harbor and Ceiling Alternative percentages for a defined area. 2. Sponsor's Profit/ Developer's Fee Safe Harbor Standard Where there is no Identity-of-Interest (See Glossary) between the Sponsor/Developer and the Builder, SPRA will be recognized as a limitation by HUD in Section 221 mortgage insurance application processing, and may be transferred by HCAs to the Mortgageable Replacement Cost Uses portion of the Sources and Uses Statement (See Attachment #2). Where there is an Identity-of-Interest, BSPRA will be recognized as the Safe Harbor standard limitation for the combined Builder's Profit and Developer's fee, and may be reflected on the Mortgageable Replacement Cost Uses portion of the Statement. Alternatively, HCAs may reflect no BSPRA/SPRA on the Mortgageable Replacement Cost Uses portion of the Statement, and may instead reflect up to 10 percent of Total Development Cost under the Non-Mortgageable Uses portion of the Statement. Ceiling Standard Following the alternative funding pattern above, the HCA may reflect Developer's Fees of up to 15 percent of Total Development Costs under the Non-Mortgageable Uses portion of the Statement where approved by the Governing Board or Approving Authority. Note on Standards #1 and #2: Ceiling Standards may not be exceeded except for a limited number of exceptional cases. An HCA may, in its discretion, permit Builder's Profit or Developer's Fees which are less than the indicated Safe Harbor standards above in accordance with market data. Between Safe Harbor and Ceiling standards, HCAs are also to use their discretion in awarding incremental Builder's Profit or Developer's Fees depending on project risk factors. However, where amounts greater than Safe Harbor standards are permitted, the HCA must justify the allowance it recommends by reference to special building or development risks, and the Governing Board must make the final determination. These risk factors include, but are not limited to, the following: location in a ``qualified census tract'' (See Glossary); size (generally, small projects should receive a higher percentage than otherwise comparable large projects); scattered site development of a particular type of housing (e.g., three bedroom family units may be especially needed in a particular area of noncontiguous parcels, and such development may involve greater compensable risk than contiguous site development of one bedroom units); location--i.e., other distressed neighborhoods not included by HUD in qualified census tracts (an HCA must document the nature of distress or blight and additional risk associated with the applicable site area, and provide adequate description in narrative form to the HCA Governing Board, so that it can make the determination of whether the Safe Harbor standard should be exceeded); challenging substantial rehabilitation with many unknown contingencies (because of the unforeseen, such projects have greater inherent risk to the Developer than new construction); and finally, whether there is an Identity-of-Interest between the Developer and the Builder that may affect recognized fees. Other factors not mentioned may be developed and considered by the HCAs and the HCA Governing Board. Note also: Because HUD analyzes and determines the allowance for Builder's Overhead in processing (See Line G43 of Form HUD-92264), extraordinarily high overhead may not be cited as a factor justifying a higher Developer's fee. Similarly, where relatively high local development fees are involved, HUD already includes these fees under the rubric ``Other Fees,'' Line G48 of Form HUD-92264, and this factor will not justify higher fees. For Section 221 substantial rehabilitation cases the ``Total Development Cost'' of only the new improvements will serve as the base for calculating the Developer's fee allowance (See Glossary). For Section 223(f) the Builder's Profit and Developer's Fee percentages must be based on only the hard cost of ``required repairs'', and must be reflected under the Non-Mortgageable Uses portion of the Sources and Uses Statement (See Glossary and Attachment #3), i.e. existing property value or acquisition price and soft costs are not included in the base for fees. For Section 241 proposals, Builder's Profit and Developer's Fee percentages are based on only the Total Development Cost of the supplemental improvements being made. 3. Syndication Expenses Safe Harbor Standard: The sum total of expenses, excluding bridge loan costs, incurred by the owner in obtaining cash from the sale of tax credits to investors through public offerings may not exceed 15 percent of the gross syndication proceeds. The sum total incurred pursuant to private offerings may not exceed 5 percent of the gross syndication proceeds. Ceiling Standard: The sum total of expenses, excluding bridge loan costs, incurred by the owner in obtaining cash from the sale of tax credits to investors through public offerings may not exceed 24 percent of the gross syndication proceeds. The sum total incurred pursuant to private offerings may not exceed 12 percent of the gross syndication proceeds. 4. LIHTC Net Syndication Proceed Estimates HCAs may not estimate net syndication proceeds (see Glossary) of less than 42 cents per dollar of the total allocation. However, where the proposed syndication of a project receiving a combination of any form of HUD assistance and LIHTCs reflects that greater than 51 cents per dollar of total allocation in net syndication proceeds will be received as a Source, the project is not subject to further Section 911 review, i.e., the Guideline Safe Harbor and Ceiling Standards above do not apply. HCAs should indicate to HUD whether this threshold has been surpassed on the Certification forwarded to HUD. Glossary Bridge Loan Interest and Costs Interim financing costs incurred by an owner on loans obtained by the pledge of investors' deferred capital contributions to the project receiving tax credits. HCAs must analyze these costs on an ``arm's length'' basis, i.e. there should be no Identity-of-Interest between the lender and any partners holding any interest in the project. HCAs must verify that no Identity-of-Interest exists between the lender and Sponsor, and for private offerings, between the lender and all general and limited partners. Where an Identity-of-Interest does exist, the HCA may recognize only reasonable market rate interest or other costs to avoid the excess profits which may result when loans are not negotiated through arm's length transactions. BSPRA/SPRA Line G68, Form HUD-92264 BSPRA for Identity-of-Interest Builder/ Developers is calculated as follows: (1) not more than 10 percent of the sum of Lines G50, G63, and G67, and (2) no profit will be allowed on Line G44. Line G68, Form HUD-92264 SPRA for non Identity-of-Interest Developer/Sponsors is calculated as follows: 1.) not more than 10 percent of the sum of Lines G45, G46, G63, and G67, and 2.) profit may be allowed on Line G44. Conventional and Below-Market Debt or Equity Financing Where conventional financing is used to meet project uses (for example, a bridge loan at initial closing), it may not be reflected on the Sources and Uses Statement unless it is subordinated to any HUD insured mortgage and, is an obligation of a third party who is not the mortgagor. Where below-market debt or equity financing is provided to meet allowable project Uses, HCAs should reflect the amount under Sources if all Uses of such funds are properly itemized and identified within the Uses portion of the Statement. HUD requires that certain formats be used for projects insured by HUD under Sections 221, 241, or 223(f) (See Attachments #2 and #3), and may not be altered, including tax-exempt bond-financed cases with LIHTCs insured under those sections. Formats for other HUD Housing-administered non-mortgage insurance assistance cases will be included in HUD's Special Instructions. A format may be developed by the HCAs and approved by HUD Headquarters for use in Section 542 (of HCDA '92) risk sharing pilot program subsidy layering reviews. Developer's Fees The amount reflected on the developer's fee line of the Sources and Uses Statement is the ``paper'' allowance for Developer's Fees. A developer's actual net fee will be affected by whether acquisition costs exceed (or are less than) recognized HUD value, and whether there are third party consultants involved whom the developer must pay, or other costs or reserves which the developer must fund, which are not recognized or reflected on the Sources and Uses Statement. Grants HCAs should recognize all grant amounts available for any allowable project Uses. In mortgage insurance cases, grants available for mortgageable item Uses are subtracted by HUD in the determination of the mortgage Source. However, all such grant amounts, plus the remaining grant amounts available to meet allowable project Uses outside of the mortgage, should be reflected on the Sources and Uses Statement. Gross Syndication Proceeds All amounts paid by purchasers of tax credits before subtraction of syndication and bridge loan costs. The Sponsor's or Sponsor's Syndicator's estimate may only be relied upon if the HCA's past experience and current market data support such reliance. The Sponsor must report and certify to the HCA the actual gross and net amounts received from the sale of tax credits, and this must be made a part of the project file available for HUD review. Identity-of-Interest A financial, familial, or business relationship that permits less than arm's length transactions. Includes, but is not limited to, existence of a reimbursement program or exchange of funds; common financial interests; common officers, directors, or stockholders; or family relationships between officers, directors, or stockholders. Net Syndication Proceeds Estimate The net estimated by the HCA shall be the net present value of all syndication proceed installments as of the ``placement in service'' date. For the purpose of making estimates, installments received subsequently will be discounted at the bridge loan interest rate. Installments received prior to placement in service will be commensurately credited in accordance with the same rate. Thus, the difference between ``early'' (credited) and ``late'' (discounted) installments centered around the placement in service date will affect the net estimate. The owner must provide its syndication and financing plan to HUD and the HCA in accordance with Chapter 18, HUD Handbook 4470.1 REV-2 for mortgage insurance cases. Operating Deficit Reserve An escrow established to fund net operating losses projected to occur between the date of initial occupancy and the date by which the project's operating income is expected to cover replacement reserve deposits, debt service, expenses, and ground rent, if any, related to operation of the rental project. HCAs may not establish separate reserve accounts not estimated and approved by HUD (see also working capital reserve and resident initiative fund reserve below). If the reserve is funded by LIHTC-proceeds, then the Sponsor must agree to enter into HUD's standard Escrow Agreement for the amount involved, except that that agreement is amended to provide that any escrow remaining after the escrow period will be transferred to the project's Replacement Reserve account rather than being returned to the Sponsor (Form HUD-92476-A, ``Escrow Agreement Additional Contribution by Sponsors,'' clause 4 must be amended). Disbursements must be approved by HUD Housing Management in accordance with established rules and policy. Note: If reserves are to be funded by a Letter of Credit, the Sponsor should indicate this in the financing plan submitted to HUD Mortgage Credit, and also, include only the costs of obtaining the Letter as a Use on Form HUD-2880. The HCA and HUD will allow only the costs associated with obtaining a Letter on the appropriate Sources and Uses Statement. Property Value The HCA will accept HUD's estimates of allowable value when performing the Section 911 review, i.e. Line G73 of Form HUD-92264. HUD estimates this value without considering any additional subsidies to be made available to the project, or any LIHTCs or other tax benefits the owner will receive. This permits Sponsors to acquire property for new construction or rehabilitation at its market value, and assures that present fee simple owners receive the value of their property, but no excess subsidy. By using ``as-is'' market value of improvements and/or land instead of investment value or acquisition cost, HUD seeks to eliminate any value attributable to the tax credits the owner/purchaser seeks, and prevent unearned windfall profits. Note: HUD will not require appraisals for property purchased from HUD, or at a foreclosure sale where HUD is the foreclosing mortgagee. In these cases, the allowable amount will be the purchase price when a project is competitively sold based on the high bid price at either a foreclosure sale or HUD-owned sale. When HUD sells a property at a pre-determined price, as in a negotiated sale, the allowable amount is that price and is not subject to adjustment. Also, for acquisition or refinance and rehabilitation of projects which will remain subject to existing HUD-insured loans, HCAs will only permit the outstanding indebtedness of the insured loan on the HUD Property Value line of the Uses portion of Attachment #2. Public Versus Private Offerings Public offerings are those syndications which must be registered with the Securities and Exchange Commission; private offerings include all others. Qualified Census Tracts Those census tracts, census enumeration districts, and/or block numbering areas designated by the Secretary in accordance with Section 42(d)(5)(C)(ii)(I) of the Internal Revenue Code as amended. Replacement Cost Uses The ``Subtotal Mortgageable Replacement Cost Uses'' reflected on an individual project's Sources and Uses Statement (See Attachment #2) must be equal to HUD's Line G74 of Form HUD-92264, except for cases where Standard #1 or #2 amounts are alternatively reflected as Non- Mortgageable Uses. Required Repairs Those repairs which HUD multifamily staff include in the work write-up pursuant to Section 223(f) processing, or determine to be necessary in Section 241 processing. Resident Initiative Fund Reserve If such a reserve is to be combined with other HUD Housing- administered assistance, it is required that: (1) The fund will be used only for resident management/ownership initiatives, security/drug free housing initiatives, job-training or other support services; and (2) all initiatives or services will be targeted to the residents of the project for which the fund is established. The HCA must coordinate any tax-credit-proceed-funding of such reserve escrows with the affected HUD Housing Office, e.g., the HUD Field Office responsible for Multifamily Property Disposition should be consulted pursuant to the activities described in Chapter 9 of HUD Handbook 4315.1 REV-1. Preservation cases involving such activities will be analyzed in accordance with Chapter 9, HUD Handbook 4350.6. Hope 2 resident initiative activities for multifamily projects must be analyzed in accordance with the Resident Initiative Office's ``Interim Guidelines''. Generally, the HCA may include as much as it and HUD deems necessary to support such activities, but the Sponsor must agree as a term of the reserve escrow that any unused funds remaining after 10 years will be transferred to the Replacement Reserve account, or, in the event of default, will immediately be applied to prepay HUD-insured mortgage loans (if any are applicable). Set-Aside Assumptions HUD requires that the Sponsor provide the materials listed in Attachment #4 regarding the amount of tax credits being sought at the time any form of HUD assistance is requested, and update this information as changes occur. LIHTC set-aside assumptions must be detailed on the form. Total Development Costs For HUD mortgage insurance cases, Line G72 of Form HUD-92264, less the sum of Lines G68 through G71, and less Line G44. It is also the sum of Lines G50, G63, and G67 (but less Line G44). HUD believes that use of well-known FHA procedures for estimating development costs will limit such costs to commercially-reasonable amounts and facilitate HUD cost certification and monitoring of the section 911 review process. Note: For section 221, BSPRA, if allowed under Standards #1 or #2, is not included in development cost base when calculating Developer's fee; but BSPRA is a percentage of the development cost base. See instructions above for calculating BSPRA/SPRA. Note also: property value, typically Line G73 of Form HUD-92264, is not included in the development cost base for calculating Developer's fee. Similarly, when establishing development cost bases for Standards #1 and #2 for Sections 223(f) or 241, the fees themselves and property value are not included. Note further: For Section 223(f) the HCA will use HUD's Form HUD-92264-A, ``Supplement to Project Analysis,'' to complete the Sources and Uses format (Attachment #3). Note finally: For Property Disposition sales the estimates may have to be increased if initial repair estimates prove to be inadequate. Total Project Cost (Uses) All project Uses must be identified and the total cost must appear on the Sources and Uses Statement. If allowable total project Uses exceed total available Sources, additional equity is required of the Sponsor to ``balance'' Sources and Uses. If total available Sources are greater than allowable total Uses then, generally, too much assistance has been provided to the project, and one of the Sources must be reduced. In such cases, HCAs will reduce the assistance within its control, i.e., tax credit allocations. Where HCAs do not accept section 911 review authority, or HUD revokes an individual HCA for non- compliance with these Guidelines, then HUD will reduce the applicable assistance within its control, as necessary, to ``balance'' sources and uses, e.g., reduce the mortgage, section 8 assistance, etc. Working Capital Reserve For Profit-Motivated Sponsors developing new construction proposals the HCA may allow HUD's estimated working capital reserve of 2 percent of newly insured mortgages, but the reserve must be funded by non- mortgage sources. HUD also determines whether any working capital is necessary for substantial rehabilitation cases, and will communicate any necessary amounts on Form HUD-92264A. If this reserve is to be funded by a Letter of Credit, only the costs associated with obtaining the Letter may be reflected as a Use on the Sources and Uses Statement. Other Matters HUD Negotiated or Competitive Sales In addition to the restrictions described above, HUD reserves the right to negotiate/impose other conditions when it sells real estate. Environmental Review A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969. The Finding of No Significant Impact is available for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of the General Counsel, Department of Housing and Urban Development, room 10276, 451 Seventh Street, SW., Washington, DC 20410. Executive Order 12612, Federalism The General Counsel, as the Designated Official under section 6(a) of Executive Order 12612, Federalism, has determined that this notice does not have ``federalism implications'' because it does not have substantial direct effects on the States (including their political subdivisions), or on the distribution of power and responsibilities among the various levels of government. Executive Order 12606, the Family The General Counsel, as the Designated Official under Executive Order 12606, the Family, has determined that this notice does not have potential significant impact on family formation, maintenance, and general well-being. It sets forth the administrative guidelines which HUD and Housing Credit Agencies must follow to ensure that participants in multifamily projects do not receive excessive compensation by combining low income housing tax credits with sundry HUD program assistance, or with assistance from other Federal, State, local, or private agencies. List of Forms Referenced Forms HUD-92013; 92264; 92264-A; 92476-A: Available through HUD insuring offices Form HUD-92264-T: See Attachment #5 Form HUD-2880: See Attachment #4 Dated: February 17, 1994. Nicolas P. Retsinas, Assistant Secretary for Housing; Federal Housing Commissioner. Attachment #1--Section 911 Certification Pursuant to Section 911 of the Housing and Community Development Act of 1992 (HCDA '92), and in accordance with HUD's Administrative Guidelines for implementation thereof published at ________ FR ______ on ______, 1994, (name of HCA) of (location of HCA) hereby certifies that (project name and HUD project number) ____________ will be receiving tax credits for the number of units and set-aside proportion your office previously assumed; OR, ____________ will not be receiving tax credits in the amount assumed by HUD in processing assistance requests, with the following revisions to be noted by your office: ---------------------------------------------------------------------- ---------------------------------------------------------------------- ---------------------------------------------------------------------- Attached hereto please find the applicable approved Sources and Uses Statement. Pursuant to the subsidy layering review performed under the Administrative Guidelines for projects receiving tax credits I can also certify that: ____________ all ``Safe Harbor'' standards contained within the Administrative Guidelines have been met, and no line item amounts exceed Guideline allowances, OR, ____________ at least one ``Ceiling'' standard was applied, but the project received the HCA Governing Board's approval (copy attached) in accordance with Guideline allowances, OR, ____________ at least one ``Ceiling'' standard was exceeded, but the HCA has determined that this is an exceptional case requiring such additional amounts and the HCA has received the HCA Governing Board's approval (copy attached), OR, ____________ the Guideline Safe Harbor and Ceiling standards do not apply because the project ownership will net at least 51 cents per dollar of total allocation (See Sources and Uses Statement attached). (name of HCA) certifies that it has properly implemented the Administrative Guidelines and that the mandates of section 911(b) of the HCDA '92 have been satisfied. (name of HCA) further certifies that, in accordance with Section 911 and the Administrative Guidelines, and as indicated above, the combination of tax credits, HUD Assistance-- (specify here, e.g. mortgage insurance, Section 8 HAP contract, etc.)-- and any other Other Government Assistance, being provided to meet allowable project uses, is not more than is necessary to provide affordable housing. ---------------------------------------------------------------------- (Authorized HCA Official) ---------------------------------------------------------------------- Date Attachment #2 Required Format--Section 2211 Sources and Uses Statement ---------------------------------------------------------------------------------------------------------------- Program Mortgage ---------------------------------------------------------------------------------------------------------------- SOURCES Debt Sources: HUD loans/programs2....................................................... *____________ ____________ Other loans (specify)..................................................... ............... ____________ Other (specify)........................................................... ............... ____________ Equity Sources: Grants available for project uses......................................... ............... ____________ Estimated Net Syndication Proceeds3....................................... ............... ____________ Additional Sponsor Equity Necessary4...................................... ............... ____________ Other Equity Sources (specify)............................................ ............... ____________ Total Sources........................................................... ............... $____________ Project Uses............................................................ Mortgageable Replacement Cost Uses: Total Land Improvements................................................... ............... $____________ Total Structures.......................................................... ............... ____________ General Requirements...................................................... ............... ____________ Builder's General Overhead................................................ ............... ____________ Builder's Profit5......................................................... ............... xxxxxx Architects' Fees.......................................................... ............... ____________ Bond Premium.............................................................. ............... ____________ Other Fees................................................................ ............... ____________ Construction Interest..................................................... ............... ____________ Taxes..................................................................... ............... ____________ Insurance................................................................. ............... ____________ Mortgage Insurance Premium................................................ ............... ____________ Examination Fee........................................................... ............... ____________ Inspection Fee............................................................ ............... ____________ Financing Fee............................................................. ............... ____________ FNMA/GNMA Fee............................................................. ............... ____________ Title & Recording......................................................... ............... ____________ Legal..................................................................... ............... ____________ Organization.............................................................. ............... ____________ Cost Certification Fee.................................................... ............... ____________ Contingency Reserve (Sub Rehab)........................................... ............... ____________ BSPRA/SPRA (if applicable)................................................ ............... ____________ HUD Property Value6....................................................... ............... xxxxxx Subtotal Mortgageable Replacement Cost Uses............................. ............... $____________ Non-Mortgageable Uses (i.e. Uses Payable by Sources Other than the Mortgage)7: Resident Initiative Fund.................................................. ............... ____________ Working Capital Reserve (or LC costs)8.................................... ............... ____________ Operating Deficit Reserve (or LC costs)9.................................. ............... ____________ Alternative Builder's Profit10............................................ ............... ____________ Alternative Developer's Fee11............................................. ............... ____________ Section 241 Developer's Fee12............................................. ............... ____________ Subtotal Non-Mortgageable Uses.......................................... ............... ____________ Total Project Uses...................................................... ............... ____________ Estimated Net Syndication Proceeds: The HCA may use this format before completing the Net Syndication Proceeds estimate line above on the Sources and Uses Statement, and must use this format to reflect final allocation determination assumptions. Total Tax Credit Allocation............................................... ............... $____________ Estimated Gross Syndication Proceeds...................................... ............... $____________ Syndication Expenses: Accountant's Fee.......................................................... ............... $____________ Syndicator's Fee.......................................................... ............... $____________ Attorney's Fee13.......................................................... ............... $____________ HCA Fee................................................................... ............... $____________ Organizational Expense14.................................................. $____________ Other (Specify)........................................................... ............... $____________ Subtotal Syndication Expenses15......................................... ............... $____________ Bridge Loan Costs less Interest (if applicable)........................... ............... $____________ Adjustment for Early and Late Installments (See Glossary, Net Syndication Proceeds)................................................................ Estimate for adjustment explanation)...................................... ............... $____________ Total Reductions from Gross............................................. ............... $____________ Estimated Net Syndication Proceeds............................................ ............... $____________ ---------------------------------------------------------------------------------------------------------------- 1This same format may be used for cases previously insured by HUD for which a Section 241 supplemental loan is proposed, but see Attachment #6 caveats. 2The HCA may assume HUD commitment amounts for the subsidy layering review. HUD may have to adjust its mortgage if set-aside proportions change from those the Sponsor and HUD anticipated. For Section 241 loans being added to existing HUD-insured loans which will not be expunged, include separately the new supplemental loan (if any) and only the outstanding indebtedness on the existing loan regardless of whether it will be assumed by a purchaser or held by an owner. 3The amount obtainable by the owner from the syndication of the project being awarded tax credits (i.e., gross proceeds less syndication expenses and bridge loan interest and costs). A format at the bottom of this Statement must be used by HCAs to reflect the results of their analyses. 4HCAs may use this line for the additional amount needed from the Sponsor to balance Sources against Uses when no additional monies are available from other Sources. 5Builder's Profit for non-Identity-of-Interest cases (a SPRA allowance may also be added below). See also Standard #1 safe harbor and ceiling standard alternatives before completing. The Mortgageable Use lines relating to Builder's Profit and Developer's Fee may be left blank if alternative funding standards are used, and the amounts are reflected below. 6See Glossary. For new construction proposals the HCA should include the ``warranted price of land'' here. For supplemental loans the ``warranted price of land'' attributable to new parcels, if any, may be added to the outstanding indebtedness of the HUD-insured property. If property is valued within a Section 221 substantial rehabilitation proposal, HUD will determine and the HCA shall reflect the non-subsidized, market rate rental use value ``As Is''. 7Note that syndication expenses are included below in the estimation of Net tax credit proceeds for this Statement, and therefore, are not included within this Statement. 8Only Letter of Credit Costs may be included if the reserve is funded by a Letter of Credit. 9Indicate the full cash reserve amount if funded by LIHTC proceeds. Indicate only the costs of obtaining a Letter of Credit for the reserve if funded by a Letter of Credit at initial closing. 10See Standard #1 for alternative funding option and standards. If Builder's Profit or BSPRA are reflected above under Mortgageable Uses, then this line should be left blank. 11See Standard #2 for alternative funding option and standards. If BSPRA or SPRA are reflected above as Mortgageable Uses, this line should be left blank. 12See Standard #2, the Glossary under ``Total Development Cost,'' and Attachment #6 below regarding chronological issues and Section 241 assistance. Any Developer's Fee under Section 241 must be reflected here. 13Such fees may not duplicate legal charges already recognized on Line G64, Form HUD-92264, nor title work as reflected on Line G62. On these lines, HUD accounts for legal fees associated with typical non-LIHTC projects. Therefore, only fees associated with the additional legal service associated with LIHTC projects should be recognized here by the HCA. 14Such expenses may not include HUD mortgage insurance application fees. Organizational expenses are already included for non-LIHTC projects under Line G65, Form HUD-92264, and should not be duplicated. Therefore, only extraordinary organizational expenses incurred because of the additional LIHTC-associated application preparation activities should be included here. 15See Guideline Standard #3 for separate safe harbor and ceiling limitations for private and public offerings. Attachment #3 Required Format--Section 223(f) Sources and Uses Statement16 ------------------------------------------------------------------------ Program Mortgage ------------------------------------------------------------------------ SOURCES Debt Sources: HUD loan17--.................................. 223(f) ________ Other loans (specify)--................... ........... ________ Other (specify)--......................... ........... ________ Equity Sources: Grants available for project uses--....... ........... ________ Estimated Net Syndication Proceeds--...... ........... ________ Additional Sponsor Equity Necessary--..... ........... ________ Other Equity Sources (specify)--.......... ........... ________ Total Sources........................... ........... $________ Project Uses: Use Limitations Related to Value & Mortgage Financing: Use Limitation ``A'': ``Fair Market Value'' of the Property Including Required Repairs, from Section L, Form HUD-92264--.............................. ........... $________ Use Limitation ``B'': (for projects being acquired) Item 7g., Form HUD-92264A18--.. ........... $________ Use Limitation ``C'': (for projects owned) Item 10g., Form HUD-92264A\19\........... ........... $________ Subtotal Value Uses Related to Mortgage Financing: For Property Acquired (lesser of ``A'' or ``B'')--................................. ........... $________ For Property Owned (lesser of ``A'' or ``C'')--................................. ........... $________ Non-Mortgageable Uses: (i.e. Uses Payable by Sources Other than the Mortgage) Resident Initiative Fund--................ ........... $________ Initial Deposit to Replacement Reserve Account--................................ ........... $________ Operating Deficit Reserve--............... ........... $________ Builder's Profit--........................ ........... $________ Developer's Fee20--....................... ........... 21$________ Subtotal Non-Mortgageable Uses.......... ........... $________ Total Project Uses...................... ........... $________ Estimated Net Syndication Proceeds: The HCA may use this format before completing the Net Syndication Proceeds estimate line above on the Sources and Uses Statement, and must use this format to reflect final allocation determination assumptions. Total Tax Credit Allocation--............. ........... $________ Estimated Gross Syndication Proceeds--.... ........... $________ Syndication Expenses: Accountant's Fee--........................ $________ ........... Syndicator's Fee--........................ $________ ........... Attorney's Fee--.......................... $________ ........... HCA Fee--................................. $________ ........... Organizational Expenses--................. $________ ........... Other (specify)--......................... $________ ........... Subtotal Syndication Expenses--......... ........... $________ Bridge Loan Costs less interest (if applicable)--............................ ........... $________ Adjustment for Early and Late Installments (See Glossary, Net Syndication Proceeds Estimate for adjustment explanation)--... ........... $________ Total Reductions from Gross--........... ........... $________ Estimated Net Syndication Proceeds--.. ........... $________ ------------------------------------------------------------------------ 16This format is only appropriate for projects which HCAs award ``rehabilitation'' LIHTCs, but proposed repairs are less than HUD's substantial rehabilitation eligibility test. 17The HCA may assume HUD commitment amounts for the subsidy layering review; HUD may have to adjust its commitment amount, or change underwriting conclusions if fewer LIHTCs are awarded than processing assumes. 18See HUD Handbook 4480.1, pages 2264A-18a. through 18d; see also Notice H 92-31. 19See HUD Handbook 4480.1, pages 2264A-18g. through 18j; see also Notice H 92-31. 20Standard #1 and #2's Safe Harbor and Ceiling percentages relating to Builder's Profit and Developer's Fee shall use HUD's ``required repairs'' cost estimate as the multiplicand. 21Please note that working capital reserves do not apply to Sec. 223(f) loans, and thus, are not an allowable use. Also, as a matter of policy, HUD will not permit unfinished work write-up escrow amounts to be funded through LIHTC proceeds. Therefore, such escrow amounts may not be included on this Statement. BILLING CODE 4210-27-M![]()
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TN25FE94.009 BILLING CODE 4210-27-C Attachment #5--Processing HUD Insured Projects Involving Low Income Housing Tax Credits Using Form HUD-92264-T A. Purpose. This attachment provides modified underwriting instructions for processing projects where owners will receive low income housing tax credits (LIHTCs). B. Background. The Tax Reform Act of 1986 amended the Internal Revenue Code to create new Federal Tax Credits for owners of low income rental housing. In Public Law 101-239, dated December 19, 1989, the applicable maximum affordable monthly rents for most apartment sizes are to be based on the program income limits by household size assuming an occupancy of 1.5 persons per bedroom and efficiency units without a separate bedroom would have income limits based on occupancy by one person. In order for a household to qualify as tax credit assisted they must have an income at or below the program income limit for their respective household size. The calculation of the maximum affordable monthly rents for tax credit units is based on tenants paying at least 30 percent of income for rent. Analysis of program participation has shown that few households in tax credit projects spend more than 40 percent of income for rent. This means that, if rents are set at the maximum, the potential market is restricted to income-eligible households with incomes between 75 and 100 percent of the respective income limit. Most households with incomes lower than this would be unable to afford the statutory maximum rents. As a result, when the proposed rents are set at the statutory maximums, the market for a tax credit assisted project is comprised of a relatively narrow band of income eligible renters, which can result in a problem with the market feasibility of the project. Therefore, depending on the particular market area and the rental market conditions in that area, there may be an insufficient number of potential renters that meet the income limit criteria and who are also willing and able to pay the maximum allowable rent. Program data show that this potential marketability problem has been dealt with either by charging lower rents or obtaining other subsidies to lower the rent. The available information on tax credit assisted units shows that most projects have established rents below the maximum permitted by the statute. In addition, over 80 percent of projects funded had some other form of assistance to further reduce tenant rents. The extent to which there is an adequate supply of units with rents at or below those proposed would also limit the market. An analysis of the market prospects of a proposed project, therefore, requires information on the current market conditions for this type of project, and information on the marketability of the proposed project relative to other options available to those income-eligible households. Thus, market demand for tax credit units depends on several factors: The number of income qualified households and the willingness of those same households to pay the proposed rents; the supply of comparable units at rents equal to or less than the proposed rents; and, the marketability of the proposed units in comparison to the existing supply. Therefore, if the Field Office determines that there is insufficient demand for the units at the proposed rents the Field Office should set the rents at lower amounts, as necessary to broaden the market band sufficiently to attract the potential tenants needed to ensure market feasibility. This determination should take into consideration the current and anticipated supply/demand conditions in the overall rental market, and potential depth of the market of income eligible households in comparison to the number of units at the proposed rents, and the marketability of the proposed units taking into account the project's amenities, rents and location relative to comparable and competitive projects and other options available to those income eligible households. C. Special Processing Instructions. In order to make the rent estimates based on income limits as close as possible to the income limits described in the legislation, the following instructions for processing HUD-insured projects involving LIHTCs using revised Form HUD-92264-T shall be used. Using this form and the following directions, the Department will determine the appropriate processing rents for the low income units required by the Tax Credits. (In the case of projects with ``deep skewed'' rental units, it may be necessary to complete two separate revised Forms HUD-92264-T, since two different qualifying income limits may apply to lower income units of the same size.) 1. Line 1 of Form HUD-92264-T--For each affected unit size, enter the market rental estimates from Form HUD-92273. 2. Line 2--If utility costs are to be paid by the tenant, enter an estimated Personal Benefit Expense (PBE) for services or utilities not included in the market rental estimate. 3. Line 3--Enter the applicable income limit. For purposes of this rent estimation exercise, the applicable income limits by unit size are as follows: ------------------------------------------------------------------------ Column A* applicable limit Column B* applicable Column C* applicable if 20%/50% restriction limit if 40%/60% limit if 15%/40% applies restriction applies restriction applies ------------------------------------------------------------------------ Eff. 1 Person Section 8..... 120% of Column 80% of Column. Very Low Income Limit....... A Limit A Limit. 1-BR 1.5-Person Section 8... 120% of Column 80% of Column. Very Low Income Limit**..... A Limit A Limit. 2-BR 3-Person Section 8..... 120% of Column 80% of Column. Very Low Income Limit....... A Limit A Limit. 3-BR 4.5-Person Section 8... 120% of Column 80% of Column. Very Low Income Limit**..... A Limit A Limit. 4-BR 6-Person Section 8..... 120% of Column 80% of Column. Very Low Income Limit....... A Limit A Limit. ------------------------------------------------------------------------ *The use of these limits by HUD for underwriting purposes is not meant to imply that the Internal Revenue Service will necessarily use the same limits in determining whether tenants will qualify as low income for purposes of the Tax Credit. **The one and one-half-person Section 8 very low income limit is computed by adding the one person Section 8 very low income limit to the two-person limit, then dividing the sum by 2. Likewise, the four and-one-half-person Section 8 very low income limit is the sum of the four-person limit and the five-person limit, divided by 2. 4. Line 4--Compute and enter the estimated maximum affordable monthly rent for each affected unit size. Compute that rental estimate as follows: a. Multiply the income limit on line 3 of the form by 30 percent (.30); b. Divide the product obtained in step a by 12; c. Subtract the monthly PBE (if any) on Line 2 from the quotient obtained in step b. 5. Line 5--Where the Valuation staff has evidence that the project's tax credit assisted units would not be marketable to income eligible households at the lesser of the maximum affordable monthly rents (Line 4) or the rent by market comparison (Line 1), based on the market analysis review by the EMAS, enter the recommended estimated monthly rent obtainable for the restricted units, as approved by the Director, HD Division. For Section 223(f) cases involving projects with existing Section 8 contracts, use this line to enter the processing rents calculated in accordance with the outstanding instructions involving the refinancing or purchase of Section 8 projects with outstanding project based contracts. 6. Line 6--Monthly Rent Estimate for Restricted Units. Enter the least of lines 1, 4, or 5. 7. Line 7--Enter the number of each unit type with income limits shown on line 3. 8. Line 8--Enter the number of each unit type shown on another Form HUD-92264-T with other income limits. 9. Line 9--Enter the number of each unit type with no income limits using unsubsidized market rents from line 1. D. For Further Information--Any questions concerning this attachment and completion of revised Form HUD-92264-T which follows should be directed to the Office of Insured Multifamily Housing Development, Technical Support Division, Valuation Branch, (FTS 8-202- 708-0624). Form HUD-92264-T.--Rent Estimates for Low or Moderate Income Units in Non Section 8 Projects Involving Tax Exempt Financing or Low Income Housing Tax Credits ---------------------------------------------------------------------------------------------------------------- Unit size 0 BR 1 BR 2-BR 3-BR 4-BR ---------------------------------------------------------------------------------------------------------------- 1. Rent by Market Comparison................... 2. Personal Benefit Expense (if any)........... 3. The Percentage of Median Income (adjusted for family size) used for income limits: 40%, 50%, 60% (circle only one; then enter the applicable dollar income limit for each unit). 4. Estimated Maximum Affordable Monthly Rent for Restricted Units:* (.30 x Line 3)--Line 2 (12)............................... 5. Estimated Obtainable Monthly Rent for Restricted Units**............................ 6. Monthly Rent Estimate for Restricted Units (least of lines 1, 4, or 5)***................ 7. Number of each unit type with income limits shown on line 3............................... 8. Number of each unit type shown on another form HUD-92264-T with other income limits..... 9. Number of each unit type with no income limits using unsubsidized market rents from line 1........................................ ---------------------------------------------------------------------------------------------------------------- Asterisks: *Where State or local laws, ordinances or regulations limit the rent to an amount lower than this formula estimate, or the Sponsor's proposed rent is less than this formula estimate, enter the lower amount and explain below. **Where the Valuation staff has evidence that the project's tax credit assisted units would not be marketable to income eligible households at the lesser of the maximum affordable monthly rents (Line 4) or the rent by market comparison (Line 1), based on the market analysis review by the EMAS, enter the recommended estimated monthly rent obtainable for the restricted units, as approved by the Director, HD Division. For Section 223(f) cases involving projects with existing Section 8 contracts, use this line to enter the processing rents calculated in accordance with the outstanding instructions involving the refinancing or purchase of Section 8 projects with outstanding project based contracts. ***Enter in Section C of Form HUD-92264. Attachment #6--Chronology Associated With Seeking Various Forms of HUD Assistance in Combination With LIHTCs Generally, the Guidelines assume that Sponsors will apply for HUD assistance first, and HCA LIHTC assistance after the amount of HUD assistance is known. However, there are certain types and combinations of HUD assistance which, when combined with HCA LIHTC assistance, suggest the opposite order, i.e. Sponsors will sometimes probably benefit from seeking HCA LIHTC assistance before seeking any available HUD assistance. This reverse order of application may be more appropriate when HUD's process for awarding assistance is based on protracted Notices of Fund Availability (NOFAs), or other competitive, short-term, or limited funding programs. For example these may include: 1. Section 201 Flexible Subsidy Capital Improvement Loans (For project eligibility, a particular existing HUD-insured loan must already be in place); 2. Section 8 Loan Management Set-Aside Assistance (additional project-based units), whether to support existing construction and repairs, new construction, or moderate or substantial rehabilitation; 3. Project-Based Section 8 Rental Assistance Increases and Section 241 Supplemental Loans (For project eligibility, a HUD-insured loan and an existing project-based Section 8 contract must be in place). 4. Property Disposition Sale Offerings Elaborating on Examples 1 and 2: Sponsors must weigh the probability and timetable for getting necessary repairs funded through these HUD assistance programs, against the probability and timetable of receiving HCA LIHTC assistance to provide for the repairs. Note: application for and refusal of assistance from one source does not preclude seeking assistance from the other source thereafter. Some Sponsors may prefer to seek HCA assistance first in these cases, and to apply for such HUD assistance as may be necessary after receiving the HCA's response. HUD's applicable program guidelines for the estimation and certification of costs must be complied with in either case. Elaborating on the third example: Any Sponsor-contemplated repair program to a HUD-insured project, if it is to be supported by new HUD assistance, must generally fall within any excess available Section 8 contract authority. This means that HUD would probably be unable to support any significant repair program. Sponsors should also note the improbability of any available amendment funds to support repair cost financing. Thus, necessary repairs are more likely to be financed through an HCA's award of LIHTCs and the Sponsor's syndication of the project to receive net syndication proceeds to pay for the repairs. Sponsors are encouraged to determine whether necessary repairs may be funded out of any existing available HUD contract authority--and if not, as will often be the case--to apply to the HCA for LIHTC assistance. [FR Doc. 94-4246 Filed 2-24-94; 8:45 am] BILLING CODE 4210-27-P