[Federal Register Volume 86, Number 125 (Friday, July 2, 2021)]
[Notices]
[Pages 35311-35314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14235]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-6275-N-01]


Statutorily Mandated Designation of Difficult Development Areas 
and Qualified Census Tracts: Revision of Effective Date for 2019 and 
2020 Designations

AGENCY: Office of the Assistant Secretary for Policy Development and 
Research, HUD.

ACTION: Notice.

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SUMMARY: This document revises the effective date for designations of 
``Difficult Development Areas'' (DDAs) and ``Qualified Census Tracts'' 
(QCTs) for purposes of the Low-Income Housing Tax Credit (LIHTC) under 
Internal Revenue Code (IRC) Section 42 (26 U.S.C. 42) published on 
October 22, 2018, (83 FR 53282) and September 25, 2019, (84 FR 50465) 
in response to the Presidentially-declared COVID-19 emergency. This 
notice extends from 730 days to 910 days the period for which the 2019 
and 2020 lists of QCTs and DDAs are effective for projects (1) located 
in an area not on subsequent lists of DDAs or QCTs; and (2) that 
submitted applications while the area was a 2019 or 2020 QCT or DDA.

FOR FURTHER INFORMATION CONTACT: For questions on how areas are 
designated and on geographic definitions, contact Michael K. Hollar, 
Senior Economist, Economic Development and Public Finance Division, 
Office of Policy Development and Research, Department of Housing and 
Urban Development, 451 Seventh Street SW, Room 8234, Washington, DC 
20410-6000; telephone number (202) 402-5878, or send an email to 
[email protected]. For specific legal questions, contact Branch 
5, Office of the Associate Chief Counsel, Passthroughs and Special 
Industries, Internal Revenue Service, 1111 Constitution Avenue NW, 
Washington, DC 20224; telephone number (202) 317-4137, fax number (855) 
591-7867. (These are not toll-free telephone numbers.) Additional 
copies of this notice are available through HUD User at (800) 245-2691 
for a small fee to cover duplication and mailing costs.
    Copies Available Electronically: This notice and additional 
information about DDAs and QCTs are available electronically on the 
internet at http://www.huduser.org/datasets/qct.html.

SUPPLEMENTARY INFORMATION:

Background

    On March 13, 2020, the President issued major disaster declarations 
under the authority of the Stafford Act with respect to all 50 States, 
the District of Columbia, and 5 territories (American Samoa, Guam, 
Puerto Rico, Northern Mariana Islands, and the U.S. Virgin Islands) to 
assist with additional needs identified under the nationwide emergency 
declaration for COVID-19. In the context of a Presidentially-declared 
Major Disaster, IRS Revenue Procedure 2014-49, 2014-37 I.R.B. 535, 
provides temporary relief to housing finance agencies (HFAs) and owners 
from certain requirements of IRC Section 42. Among the relief provided, 
if an owner has a carryover allocation for a building located in a 
Major Disaster Area and the Major Disaster occurs on or after the date 
of the carryover allocation, an HFA may grant an extension to the 
placed-in-service requirement. Rev. Proc. 2014-49, Section 6.03. This 
extension applies only to properties receiving IRC Section 42 allocated 
credits and does not apply or provide relief to properties receiving 
credits associated with IRC Section 142 tax-exempt bond revenue. HUD is 
revising the effective date of the 2019 and 2020 QCTs and DDAs at this 
time to aid the ability of areas affected by COVID-19 to place in 
service affordable housing under both Section 42 and Section 142.

I. This Notice

    This notice extends from 730 days to 910 days the period for which 
the 2019 and 2020 lists of QCTs and DDAs are effective for projects 
that are not located in areas on subsequent lists of DDAs or QCTs but 
submitted applications while the area was a 2019 or 2020 QCT or DDA. 
HUD published lists of DDAs and QCTs for 2019 on October 22, 2018 (83 
FR 53282); for 2020 on September 25, 2019 (84 FR 50465); and for 2021 
on September 24, 2020 (85 FR 60255). The actual designations of 2019 
and 2020 QCTs and DDAs are not affected by this notice. HUD is revising 
the effective date of the 2019 and 2020 QCTs and DDAs at this time to 
aid the ability of areas affected by COVID-19 to place in service 
affordable housing.

[[Page 35312]]

II. Extension of 2019 DDA and QCT Designations

    For LIHTC and bond-financed projects, the sections entitled 
``Effective Date'' and ``Interpretive Examples of Effective Date'' of 
the 2019 DDA and QCT designations as published October 22, 2018 (83 FR 
53282) are hereby revised to read as follows:

Effective Date

    The 2019 lists of QCTs and DDAs are effective:
    (1) For allocations of credit after December 31, 2018; or
    (2) for purposes of IRC section 42(h)(4), if the bonds are issued 
and the building is placed in service after December 31, 2018.
    If an area is not on a subsequent list of DDAs, the 2019 lists are 
effective for the area if:
    (1) The allocation of credit to an applicant is made no later than 
the end of the 910-day period after the applicant submits a complete 
application to the LIHTC-allocating agency, and the submission is made 
before the effective date of the subsequent lists; or
    (2) for purposes of IRC section 42(h)(4), if:
    (a) The bonds are issued or the building is placed in service no 
later than the end of the 910-day period after the applicant submits a 
complete application to the bond-issuing agency, and
    (b) the submission is made before the effective date of the 
subsequent lists, provided that both the issuance of the bonds and the 
placement in service of the building occur after the application is 
submitted.
    An application is deemed to be submitted on the date it is filed if 
the application is determined to be complete by the credit-allocating 
or bond-issuing agency. A ``complete application'' means that no more 
than de minimis clarification of the application is required for the 
agency to make a decision about the allocation of tax credits or 
issuance of bonds requested in the application.
    In the case of a ``multiphase project,'' the DDA or QCT status of 
the site of the project that applies for all phases of the project is 
that which applied when the project received its first allocation of 
LIHTC. For purposes of IRC section 42(h)(4), the DDA or QCT status of 
the site of the project that applies for all phases of the project is 
that which applied when the first of the following occurred: (a) The 
building(s) in the first phase were placed in service, or (b) the bonds 
were issued.
    For purposes of this notice, a ``multiphase project'' is defined as 
a set of buildings to be constructed or rehabilitated under the rules 
of the LIHTC and meeting the following criteria:
    (1) The multiphase composition of the project (i.e., total number 
of buildings and phases in project, with a description of how many 
buildings are to be built in each phase and when each phase is to be 
completed, and any other information required by the agency) is made 
known by the applicant in the first application of credit for any 
building in the project, and that applicant identifies the buildings in 
the project for which credit is (or will be) sought;
    (2) The aggregate amount of LIHTC applied for on behalf of, or that 
would eventually be allocated to, the buildings on the site exceeds the 
one-year limitation on credits per applicant, as defined in the 
Qualified Allocation Plan (QAP) of the LIHTC-allocating agency, or the 
annual per-capita credit authority of the LIHTC allocating agency, and 
is the reason the applicant must request multiple allocations over two 
or more years; and
    (3) All applications for LIHTC for buildings on the site are made 
in immediately consecutive years.
    Members of the public are hereby reminded that the Secretary of 
Housing and Urban Development, or the Secretary's designee, has legal 
authority to designate DDAs and QCTs, in accordance with 26 U.S.C. 
42(d)(5), by publishing lists of geographic entities as defined by, in 
the case of DDAs, the Census Bureau, the several states and the 
governments of the insular areas of the United States and, in the case 
of QCTs, by the Census Bureau; and to establish the effective dates of 
such lists. The Secretary of the Treasury, through the IRS thereof, has 
sole legal authority to interpret, and to determine and enforce 
compliance with the IRC and associated regulations, including Federal 
Register notices published by HUD for purposes of designating DDAs and 
QCTs. Representations made by any other entity as to the content of HUD 
notices designating DDAs and QCTs that do not precisely match the 
language published by HUD should not be relied upon by taxpayers in 
determining what actions are necessary to comply with HUD notices.

Interpretive Examples of Effective Date

    For the convenience of readers of this notice, interpretive 
examples are provided below to illustrate the consequences of the 
effective date in areas that gain or lose DDA status. The examples 
covering DDAs are equally applicable to QCT designations.
    (Case A) Project A is located in a 2019 DDA that is NOT a 
designated DDA in 2020, 2021, or 2022. A complete application for tax 
credits for Project A is filed with the allocating agency on November 
15, 2019. Credits are allocated to Project A on January 30, 2022. 
Project A is eligible for the increase in basis accorded a project in a 
2019 DDA because the application was filed BEFORE January 1, 2020 (the 
effective date for the 2020 DDA lists), and because tax credits were 
allocated no later than the end of the 910-day period after the filing 
of the complete application for an allocation of tax credits.
    (Case B) Project B is located in a 2019 DDA that is NOT a 
designated DDA in 2020, 2021, or 2022. A complete application for tax 
credits for Project B is filed with the allocating agency on December 
1, 2019. Credits are allocated to Project B on June 30, 2022. Project B 
is NOT eligible for the increase in basis accorded a project in a 2019 
DDA because, although the application for an allocation of tax credits 
was filed BEFORE January 1, 2020 (the effective date of the 2020 DDA 
lists), the tax credits were allocated later than the end of the 910-
day period after the filing of the complete application.
    (Case C) Project C is located in a 2019 DDA that was not a DDA in 
2018. Project C was placed in service on November 15, 2018. A complete 
application for tax-exempt bond financing for Project C is filed with 
the bond-issuing agency on January 15, 2019. The bonds that will 
support the permanent financing of Project C are issued on September 
30, 2019. Project C is NOT eligible for the increase in basis otherwise 
accorded a project in a 2019 DDA, because the project was placed in 
service BEFORE January 1, 2019.
    (Case D) Project D is located in an area that is a DDA in 2019, but 
is NOT a DDA in 2020, 2021, or 2022. A complete application for tax-
exempt bond financing for Project D is filed with the bond-issuing 
agency on October 30, 2019. Bonds are issued for Project D on January 
30, 2022, but Project D is not placed in service until July 30, 2022. 
Project D is eligible for the increase in basis available to projects 
located in 2019 DDAs because: (1) One of the two events necessary for 
triggering the effective date for buildings described in Section 
42(h)(4)(B) of the IRC (the two events being bonds issued and buildings 
placed in service) took place on January 30, 2022, within the 910-day 
period after a complete application for tax-exempt bond financing was 
filed, (2) the application was filed during a time when the

[[Page 35313]]

location of Project D was in a DDA, and (3) both the issuance of the 
bonds and placement in service of Project D occurred after the 
application was submitted.

Extension of 2020 DDA and QCT Designations

    For LIHTC and bond-financed projects, the sections entitled 
``Effective Date'' and ``Interpretive Examples of Effective Date'' of 
the 2020 DDA and QCT designations as published September 25, 2019 (84 
FR 50465) are hereby revised to read as follows:

Effective Date

    The 2020 lists of QCTs and DDAs are effective:
    (1) For allocations of credit after December 31, 2019; or
    (2) for purposes of IRC section 42(h)(4), if the bonds are issued 
and the building is placed in service after December 31, 2019.
    If an area is not on a subsequent list of DDAs, the 2020 lists are 
effective for the area if:
    (1) The allocation of credit to an applicant is made no later than 
the end of the 910-day period after the applicant submits a complete 
application to the LIHTC-allocating agency, and the submission is made 
before the effective date of the subsequent lists; or
    (2) for purposes of IRC section 42(h)(4), if:
    (a) The bonds are issued or the building is placed in service no 
later than the end of the 910-day period after the applicant submits a 
complete application to the bond-issuing agency, and
    (b) the submission is made before the effective date of the 
subsequent lists, provided that both the issuance of the bonds and the 
placement in service of the building occur after the application is 
submitted.
    An application is deemed to be submitted on the date it is filed if 
the application is determined to be complete by the credit-allocating 
or bond-issuing agency. A ``complete application'' means that no more 
than de minimis clarification of the application is required for the 
agency to make a decision about the allocation of tax credits or 
issuance of bonds requested in the application.
    In the case of a ``multiphase project,'' the DDA or QCT status of 
the site of the project that applies for all phases of the project is 
that which applied when the project received its first allocation of 
LIHTC. For purposes of IRC section 42(h)(4), the DDA or QCT status of 
the site of the project that applies for all phases of the project is 
that which applied when the first of the following occurred: (a) The 
building(s) in the first phase were placed in service, or (b) the bonds 
were issued.
    For purposes of this notice, a ``multiphase project'' is defined as 
a set of buildings to be constructed or rehabilitated under the rules 
of the LIHTC and meeting the following criteria:
    (1) The multiphase composition of the project (i.e., total number 
of buildings and phases in project, with a description of how many 
buildings are to be built in each phase and when each phase is to be 
completed, and any other information required by the agency) is made 
known by the applicant in the first application of credit for any 
building in the project, and that applicant identifies the buildings in 
the project for which credit is (or will be) sought;
    (2) The aggregate amount of LIHTC applied for on behalf of, or that 
would eventually be allocated to, the buildings on the site exceeds the 
one-year limitation on credits per applicant, as defined in the 
Qualified Allocation Plan (QAP) of the LIHTC-allocating agency, or the 
annual per-capita credit authority of the LIHTC allocating agency, and 
is the reason the applicant must request multiple allocations over two 
or more years; and
    (3) All applications for LIHTC for buildings on the site are made 
in immediately consecutive years.
    Members of the public are hereby reminded that the Secretary of 
Housing and Urban Development, or the Secretary's designee, has legal 
authority to designate DDAs and QCTs, in accordance with 26 U.S.C. 
42(d)(5), by publishing lists of geographic entities as defined by, in 
the case of DDAs, the Census Bureau, the several states and the 
governments of the insular areas of the United States and, in the case 
of QCTs, by the Census Bureau; and to establish the effective dates of 
such lists. The Secretary of the Treasury, through the IRS thereof, has 
sole legal authority to interpret, and to determine and enforce 
compliance with the IRC and associated regulations, including Federal 
Register notices published by HUD for purposes of designating DDAs and 
QCTs. Representations made by any other entity as to the content of HUD 
notices designating DDAs and QCTs that do not precisely match the 
language published by HUD should not be relied upon by taxpayers in 
determining what actions are necessary to comply with HUD notices.

Interpretive Examples of Effective Date

    For the convenience of readers of this notice, interpretive 
examples are provided below to illustrate the consequences of the 
effective date in areas that gain or lose DDA status. The examples 
covering DDAs are equally applicable to QCT designations.
    (Case A) Project A is located in a 2020 DDA that is NOT a 
designated DDA in 2021, 2022, or 2023. A complete application for tax 
credits for Project A is filed with the allocating agency on November 
15, 2020. Credits are allocated to Project A on January 30, 2023. 
Project A is eligible for the increase in basis accorded a project in a 
2020 DDA because the application was filed BEFORE January 1, 2021 (the 
effective date for the 2021 DDA lists), and because tax credits were 
allocated no later than the end of the 910-day period after the filing 
of the complete application for an allocation of tax credits.
    (Case B) Project B is located in a 2020 DDA that is NOT a 
designated DDA in 2021, 2022, or 2023. A complete application for tax 
credits for Project B is filed with the allocating agency on December 
1, 2020. Credits are allocated to Project B on June 30, 2023. Project B 
is NOT eligible for the increase in basis accorded a project in a 2020 
DDA because, although the application for an allocation of tax credits 
was filed BEFORE January 1, 2021 (the effective date of the 2021 DDA 
lists), the tax credits were allocated later than the end of the 910-
day period after the filing of the complete application.
    (Case C) Project C is located in a 2020 DDA that was not a DDA in 
2019. Project C was placed in service on November 15, 2019. A complete 
application for tax-exempt bond financing for Project C is filed with 
the bond-issuing agency on January 15, 2020. The bonds that will 
support the permanent financing of Project C are issued on September 
30, 2020. Project C is NOT eligible for the increase in basis otherwise 
accorded a project in a 2020 DDA, because the project was placed in 
service BEFORE January 1, 2020.
    (Case D) Project D is located in an area that is a DDA in 2020, but 
is NOT a DDA in 2021, 2022, or 2023. A complete application for tax-
exempt bond financing for Project D is filed with the bond-issuing 
agency on October 30, 2020. Bonds are issued for Project D on January 
30, 2023, but Project D is not placed in service until July 30, 2023. 
Project D is eligible for the increase in basis available to projects 
located in 2020 DDAs because: (1) One of the two events necessary for

[[Page 35314]]

triggering the effective date for buildings described in Section 
42(h)(4)(B) of the IRC (the two events being bonds issued and buildings 
placed in service) took place on January 30, 2023, within the 910-day 
period after a complete application for tax-exempt bond financing was 
filed, (2) the application was filed during a time when the location of 
Project D was in a DDA, and (3) both the issuance of the bonds and 
placement in service of Project D occurred after the application was 
submitted.

Findings and Certifications

A. Environmental Impact

    This notice involves the establishment of fiscal requirements or 
procedures that are related to rate and cost determinations and do not 
constitute a development decision affecting the physical condition of 
specific project areas or building sites. Accordingly, under 40 CFR 
1508.4 of the regulations of the Council on Environmental Quality and 
24 CFR 50.19(c)(6) of HUD's regulations, this notice is categorically 
excluded from environmental review under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321).

B. Federalism Impact

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any policy document that has federalism implications if 
the document either imposes substantial direct compliance costs on 
state and local governments and is not required by statute, or the 
document preempts state law, unless the agency meets the consultation 
and funding requirements of section 6 of the executive order. This 
notice merely designates DDAs and QCTs as required under IRC Section 
42, as amended, for the use by political subdivisions of the states in 
allocating the LIHTC. As a result, this notice is not subject to review 
under the order.

Kurt G. Usowski,
Deputy Assistant Secretary for Economic Affairs.
[FR Doc. 2021-14235 Filed 7-1-21; 8:45 am]
BILLING CODE 4210-67-P