National Development Council Low-Income Housing Tax Credits Lecture Notes National Trust for Historic Preservation November 4, 2010 Washington, DC John Linner National Development Council 1946 N. 13 th , #484, Toledo, OH 43604 ph: 419-242-5713 [email protected]1
Low-Income Housing Tax Credits. Lecture Notes National Trust for Historic Preservation November 4, 2010 Washington, DC John Linner National Development Council 1946 N. 13 th , #484, Toledo, OH 43604 ph: 419-242-5713 [email protected]. Tax Credits. - PowerPoint PPT Presentation
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National Development Council
Low-Income Housing Tax Credits
Lecture Notes
National Trust for Historic PreservationNovember 4, 2010Washington, DC
John LinnerNational Development Council
1946 N. 13th, #484, Toledo, OH 43604ph: 419-242-5713
• A direct, dollar-for-dollar reduction of tax liability
• Two kinds for rental housing1. Historic Rehabilitation Tax Credits (HRTCs)2. Low-Income Housing Tax Credits (LIHTCs)
• Intended to give investors an incentive to make investments that have a public purpose
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3Low-Income Housing Tax Credits (LIHTCs)
• Introduced in Tax Reform Act of 1986
• Extended in Revenue Reconciliation Act of 1993
• Intended to encourage investment in low-income rental housing
• Principal federal subsidy for low-income housing
• Annual credit for 10 years
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For Permanent Rental Housing
• Excludes nursing homes, health care facilities
• Must be for “general use”
• Normally, minimum six month initial lease term (exception for SRO’s, housing for the homeless)
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1. Incomes of occupants
2. Rent restrictions
3. State agency approval
Three Threshold Criteria
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• 20 percent of units must be occupied by tenants with incomes below 50 percent of area median income (AMI)
OR• 40 percent of units must be occupied by tenants
with incomes below 60 percent of AMI• Election must be made by time building is placed in
service• Must be met in first year credits are claimed
• Receive credits only on units occupied by qualified low-income tenants (applicable fraction)
• Maximum credit award requires 100 percent low-income occupancy
Income/Occupancy
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• Gross wages and salaries• Social Security, pension, retirement• Disability, worker’s compensation, unemployment• Welfare• Alimony, child support• Earned income tax credit > taxes• Interest, dividends or imputed income• Qualifying amount is “anticipated” total• Once qualified, a household’s income may rise above
LIHTC limits without disqualifying unit• Annual recertifications may be waived for 100 percent
low-income projects
What Counts as Income?
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• All units receiving LIHTCs have rent restrictions
• Restrictions based on number of bedrooms, imputed household size, and AMI
• Imputed household size equals number of bedrooms x 1.5 persons per bedroom (one person for a 0-bedroom unit)
• Rent cannot exceed 30 percent of income qualifier (either 50 or 60 percent of median) for the assumed household size
• Maximum rent includes all utilities except telephone
Rent Restrictions
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9Computation for Two-Bedroom Unit
• Imputed household size is 2 x 1.5 persons/bedroom = three-person household
• DC median income for three-person household is $92,400
• 60 percent of median is .60 x $92,400 = $55,440 or $4,620 per month
• Maximum two-bedroom rent is 30 percent of $4,620 per month, or $1,386 per month
• If utility allowance for two-bedroom unit is $125 per month maximum contract rent is $1,386 – 125 = $1,261 per month
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10Computation for a One-Bedroom Unit• Imputed household size is 1 x 1.5 persons per
bedroom = 1.5 persons
• If DC median income for one person is $71,900 and median for two persons is $82,200, median for 1.5 persons is midpoint or $77,050
• 60 percent of median equals $46,230 or $3,852 per month
• 30 percent of median is $1,155 per month
• If utility allowance for one-bedroom unit is $100 per month, maximum contract rent is
$1,155 - $100 = $1,055 per month
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Computation for a One-bedroom Unit (cont.)
• Maximum rents do not include rental assistance (Section 8) or payments for supportive services from government agencies or non-profits
• Maximum rents do include any tenant payments for services that are required as a condition of occupancy• In assisted living projects, services must be optional
or funded by agencies
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12Tenant Charges for On-site Facilities
• If tenants must pay to use on-site facilities (garage spaces, storage spaces), then either• Payments count against maximum LIHTC rent, or• Costs of facilities are excluded from basis
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LIHTC Rents (cont.)
• Income qualification is based on the individual household’s income. Must be below threshold for that household.
• Rent is based not on tenant’s household size or income but on threshold for imputed household size
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Maximum Rents May Decline
• Maximum gross LIHTC rent may decline with decline in AMI, but cannot be less than initial maximum
• Maximum contract rent may decline because of increase in utility allowance
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15LIHTC Projects Must Remain Low-income on a Long-term Basis
• Rent and income restrictions are in force for a minimum of 15 years (compliance period)
• Additional 15-year “extended use obligation”
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State Agency Approval
• LIHTCs are administered by states• Each state receives $2.15 LIHTCs per resident
($2.465 million minimum) for 2011• State agency allocates credits
• Creates own allocation plan• Underwrites projects• Monitors projects
• At least 10 percent set aside for projects sponsored by non-profit organizations
• States may require low-income occupancy for longer than 30 years
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Two Kinds of LIHTCs
• 70 percent present value (9% credit) – presently fixed at 9.0%
• 30 percent present value(4% credit) – floats and is adjusted monthly – 3.24% for November of 2010
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Two Kinds of LIHTCs (cont.)
• Most projects are “9% deals” - receive 9% credit on all rehabilitation work or new construction
• Others are “4% bond deals” - receive 4% credit on all rehabilitation work or new construction
• Also sometimes receive 4% credit on the building portion of acquisition on a rehabilitation project
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Grants Excluded from Basis
• No credits on costs funded with grants
• Convert grants into loans
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20New Construction/Substantial Rehabilitation
• Annual credit for 10 years
• Substantial rehabilitation requires spending the greater of• $6,000 per unit, or• 20 percent of remaining depreciable basis
22Example30% Basis Increase for Difficult Development Areas andQualified Census Tracts
USES SOURCES$1,000 6,000$7,000
LandResid. ImprovementTOTAL
$1,500586
4,914 $7,000
Bank LoanHOMEEquityTOTAL
LIHTCs$6,000
x 1.37,800
x .09702
x 10$7,020
Resid. Improvement
Credit Basis
Maximum LIHTC/Year
Maximum LIHTCs over 10 years
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30% Basis Increase contd.
• A state may also provide the 30% basis increase for any project that the state believes needs additional credits in order to be feasible
23
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24Improvement Basis (9% or 4% Credit)
• Include• Construction and supervision• Architectural, engineering, design fees• Construction financing costs (fees, appraisals,
interest)• Developer fees• Permits and inspection fees• Performance bonds• Furnishings• Environmental assessment• Development consulting fees• Property taxes and insurance• Community service space (qualified census tract,
serve primarily low-income residents, limits on percentage of building basis)
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25Not Considered Part of Construction or Rehabilitation Basis
• Exclude• Permanent financing expenses• Syndication costs• Tax credit application fees• Reserves• Acquisition expense (land or building)• Off-site improvements (generally)• Organizational expense• All costs attributable to non-residential (exception
for community service space)• All costs attributable to market-rate units
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Acquisition Credit
• Can also receive 4% credit on portion of acquisition price attributable to building
• Available with substantial rehabilitation only• Must spend greater of $6,000 per unit or 20% of
building basis
• Must meet “10 year placed in service rule”• Waivers for REO’s, preservation projects
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27Acquisition/Rehabilitation In Difficult Development Area
• Compliance with historic standards may increase costs
• RTC’s reduce basis for LIHTCs – even greater impact if project is eligible for 30% basis increase
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Master Tenant Leases
• Tax code allows RTCs to be passed through to a tenant
• Create separate partnership (master tenant) to lease building and take RTCs
• No basis reduction on LIHTCs
• Used most often on large bond deals
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Example
• Project with $10 Million of Historic Rehabilitation in Qualified Census Tract
No Master Tenant Master Tenant
$10,000 Rehab- 2,000 HRTC$8,000x 1.3
10,400 LIHTC Basis
x .0324$337 LIHTC/Year
$10,000 Rehabx 1.3
$13,000 LIHTC Basisx .0324
$429 LIHTC/Year
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Typical Credit “Prices”
• RTCs - $.80-.90 per dollar
• LIHTCs - $.65-.80 per dollar
• Prices are negotiated between developers and investors
• Prices have declined sharply since peak in 2006-2007
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Competition Problem
• Most states have two or three times as many proposed projects as they can fund
• Makes the application process increasingly uncertain
• Incur substantial predevelopment costs with no assurance of feasible project
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Solution – Bond Deal
• Qualify for “4%” credit outside state’s normal allocation process
• Requires allocation of “private activity” bond cap
• State gets $95 per resident in bond cap (compared to $2.15 per resident in LIHTC’s)
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36Tax-Exempt Financing and LIHTCs
• Projects with 50 percent of costs funded with tax-exempt financing automatically receive 4% credit without state approval outside state’s LIHTC Allocation process• Financing must be from state’s volume cap for
private activity bonds
• Often mixed-income projects
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Must Fund Half of Development Costs With Tax-exempt Debt
• Must pay for 50 percent of cost (land plus depreciable basis) with bond proceeds
• Rent restrictions may limit the amount of permanent debt
• Can meet the 50 percent test with tax-exempt interim financing and pay down with investor equity and soft permanent debt
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Problem – 4% Credit Yields Fewer Credits and Less Equity
• LP invests solely for tax benefits - gets 99.99% of the tax credits and the losses
• Developer/GP tries to capture as many of the cash benefits as possible (developer’s fees, cash flow, residuals)
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48Ways Of DivertingCash Flow To GP
• Deferred developer fees
• Payments on GP loans
• Partnership management fees
• Incentive management fees – limited to lesser of 80-90 percent of cash flow or some percentage (10-15 percent) of effective gross
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Investors Also Value Losses
Principal Payments+ Reserve Deposits- Depreciation- Amortization- Accrued Interest= Taxable Income (Losses)x Tax Rate= Taxes (Tax Savings)
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Doing a LIHTC Project – Step One
• Applying for credits• Site identification and control• Preliminary design concept and budget• Information about the development team• Market/feasibility analysis• Financial projections
• Operating pro forma• Estimate of credits• Sources and uses
• Letters of interest from financing sources
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Site Control
• Option
• Ground lease
• Purchase
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Market Analysis
• Compare LIHTC rents to market rents
• Market vacancy rates
• Vacancy/waiting lists in other subsidized projects
• Percentage of annual credit amount in first year
• Additional tax savings from losses
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Key Deadlines in LIHTC Process• Place in service by 12/31 in year of credit award or get
carryover allocation
• To get carryover, incur 10 percent of costs by 12/31 in year of credit award or within 12 months of credit award
• If get carryover, place in service within 24 months of 12/31 in year of credit award
• Must meet low-income threshold in year credits claimed
• Establish basis in year placed in service or following year
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65Meeting 10 Percent Carryover Test
• Must incur costs equal to 10 percent of basis plus land costs
• Minimize cash outlay by• Accruing 20 percent of developer fee• Buying land with seller note
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Establishing Basis of a Building
Total basis-eligible costsx Percentage rented to qualified tenants (Applicable Fraction)= LIHTC Basis
• Applicable fraction is lesser of percentage of units or percentage of square footage leased to qualified tenants
• Units not rented to qualified tenants when basis is established may be added the following year, but credits will be at 2/3 rate for balance of compliance period
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67Calculating Credits for the First Year
• Unit eligible in month first occupied by qualified tenant
• Units rented in January receive 12 months, in February receive 11 months, etc.
• Portion of the annual award not received the first year is received in the eleventh year
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Example
• Project with 15 identical units• Annual allocation of $100,000 of LIHTCs• Placed in service in by May 1st• Five units rented in May, June and July
MonthNew Units
RentedCredit/Months
Per UnitTotal
Credit/Months
MayJuneJuly
555
876
4035
30105
Potential Credit/months = 12 months x 15 units = 180 credits/month
105/180 = 58.333%$100,000 x 58.333% = $58,333 LIHTCs in First Year
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6969Investors’ Primary Objective IsTax Credits
• Pay in advance for credits promised in the future
• Often have 80 or 90% of money invested upon completion, before a project has qualified for any LIHTCs
• How do they manage the risk?
• Tax Credit Adjusters
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Credit Adjusters
• Investors reduce capital contributions if• Shortfall in total credits promised in
partnership agreement• Delay in delivering credits
• Reduction in equity to maintain the investor’s yield from the project
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Three Kinds of Adjusters
• Adjuster for shortfall in total LIHTCs delivered -- reduce capital contributions
• Adjuster for delay in delivery of LIHTCs -- reduce capital contributions
• Adjuster for units that go out of compliance -- investor gets cash flow to make up for lost credits
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Shortfall in Total Credits
• Investor agrees to invest $.70 per $1.00 of LIHTCs. Commits $7 million in equity for $10 million in LIHTCs over 10 years
• Project only qualifies for $9.8 million in LIHTCs, a shortfall of $200,000
• $200,000 x $.70 = $140,000 reduction in capital
• Capital reduced to $6,860,000
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Delay in Credit Delivery
• In first year, units become qualified for credits when they are first rented to qualified tenants
• Sooner units are leased, more credits delivered in first year
• Credits not delivered in first year are delivered in year 11 -- much lower value
• Investors want credits sooner rather than later
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Example
• 12-unit project with $144,000 annual LIHTC allocation• Leasing schedule is four units in January, four units in
• Permanent sources’ conditions for funding (completion, rent-up)
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83Private ConstructionLender Protections
• First mortgage or deed of trust
• Subordination of rent restrictions
• Completion guarantees
• Performance and payment bonds
• Timing of funding
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Public Agency Concerns
• Regulatory compliance – CDBG, HOME, etc.
• Maximizing private financing
• Avoiding foreclosure by senior lender – adequate debt coverage
• Insuring completion
• Long-term affordability
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Public Agency Protections
• Performance and payment bonds
• Regulatory agreements
• Right to cure loan defaults
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Investor Concerns
• Completion by developer
• No defaults for 15 years
• Compliance for 15 years
• Internal rate of return
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Investor Protections
• During development stage• Staged pay-ins, inspections• Completion guarantees• Performance and payment bonds
• During operations• Deferred developer fees• Credit adjusters• Operating reserves• Developer operating deficit guarantees• Right to remove General Partner to cure defaults
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Developer Concerns
• Size and timing of developer fee
• Operating reserves
• Share of cash flow and residuals
• Buyout price
• Operating deficit guarantees
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Reserves
• Rent Up Reserves• Funds to cover cost of operations from close of
permanent financing to breakeven • Funded from capital budget (sources of funds)
• Operating Reserves• Funds to cover shortfalls from operations for the
term of permanent financing• Funded from capital budget or from operations or
both• Replacement Reserves
• Funds to cover cost of replacement of building systems when needed
• Funded from capital budget or from operations or both
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Key Partnership Issues• Timing of capital contributions
• Amount during construction• Amount by permanent closing• Requirements for final payment
• Operating deficit guarantees• Maximum amount• Duration
• Reserves• Amount• Provisions for release
• Developer fee• Timing of paymanet• Amount payable
• Credit adjusters• Completion guarantees
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Asset Management
• If you fund a LIHTC project, you have a 15-year asset management responsibility
• Oversee project on behalf of investor
• Is the project performing?
• Is the project providing information (financial statements, audits, K-l’s) in a timely manner?
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92Asset Management Responsibilities
• Make sure the project is completed -- within budget, on time
• Make sure project delivers tax credits on time• Make sure the project meets all regulatory
requirements -- LIHTC, HOME, etc.• Make sure the property is well maintained• Make sure the project can generate sufficient
income to pay debt service and expenses
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93What Is Needed toManage Assets Effectively?
• Information to track performance• Budgets, schedules and deadlines• Financing documents and regulatory agreements• Construction and property management documents• Financial statements and operational reports• Site visits
• Analysis and follow-up
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94Asset Management During Construction
• Construction risk: most common issues• Change orders
• Hidden conditions• Changing governmental requirements• General partner “upgrades”• Inadequate plans and specs, architect’s errors
• Delays• Weather• Permitting, inspections• Disputes with subcontractors• Availability of materials
• Issues with contractors• Construction deficiencies• Failure to perform
• Design and construction deficiencies
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95Asset Management During Construction
• Potential impacts of these problems• Increased project costs, completion at risk• Failure to meet critical deadlines -- loss of credits• Delayed rent-up and credit delivery• Reduced payable developer fee• Undercapitalized reserves• Reduction in equity
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Asset Management during construction (cont.)
• What the asset manager needs to watch• Is the project on schedule?• Is the work being completed in accordance with the
approved plans and specs?• Are the subcontractors being paid?• Is there sufficient money remaining to complete the
project?• Change orders• Remaining margin for error
• Cost increases funded first from contingency;• next from payable developer fee;• next from developer’s personal funds
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Asset Management during construction (cont.)
• Managing the risk: protections• Insurance
• Architect’s professional liability (errors and omissions)• Builder’s risk
• Liquidated damages from contractor• Payment and performance bond/letter of credit• Sign-off on construction draws
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98Asset Management During Lease-up
• Getting the project built is just the beginning
• Lease-up must start long before construction ends
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Asset Management during lease-up (cont.)
• Lease-up risk: most common issues• Delayed occupancy
• Delayed construction completion• Slow lease-up
• Market and marketing• Qualification of tenants
• Organization/property management• Failure to achieve projected rents• Post lease-up occupancy
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Asset Management during lease-up (cont.)
• What the Asset Manager needs to watch• Is the project on schedule to lease up and reach
stabilized occupancy within the timeframe originally projected?•Restricted units•Market rate units•Commercial space
• Is the project meeting regulatory requirements?• Is the project on schedule to deliver credits as
projected?
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Asset Management during lease-up (cont.)
• What the Asset Manager needs to watch• Is the project on its way to financial and operational
leases up?•Is project on target to convert to permanent
financing?•Are reserves being funded?
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Asset Management during Lease-up (cont.)
• Most common “mistakes” during lease-up• Not understanding or confirming project’s
regulatory restrictions• Filling previously qualified units before all
LIHTC units have been qualified• Relaxing screening requirements• Not tracking inquiries and applicants
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103Asset Management during Operations• What the asset manager needs to watch
• Is the project meeting financial and operating projections and obligations?• Debt service, taxes, insurance, reserves
• Is the property being well managed and well maintained?
• Is the project in compliance with all regulatory and reporting requirements?
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Asset Management during operations (cont.)
• Operations risk: most common issues• Negative cash flow -- revenues are insufficient to
meet all financial obligations• Potential consequences
• Mortgage default• Inability to convert to permanent financing• Delay in investor capital contribution• Inadequate maintenance
• How do you know?• Quarterly financial statements, annual audit• Failure to pay taxes and insurance or to fund reserves• Delinquency on loan payments
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Asset Management during operations (cont.)
• Source of the problem?• Rents lower than anticipated• Vacancy higher than anticipated• Rent concessions and incentives• Expenses higher than anticipated – which ones?• Restrictions - too many units at 30 or 40% AMI• Commercial space
• Losses reduced by non-deductible cash expenses• Principal payments• Reserve deposits
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Exit Taxes contd.
Depreciation+ Amortization+ Accrued Interest Payments- Principal Payments- Reserve Deposits= Losses
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125Most “9% Credit” Deals Today Have No Exit Tax Liability
• Investors putting in large amounts of equity - less chance of losses exceeding capital contributions
• With more equity, less need for accruing subordinate loans
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126Types Of Projects TodayThat Often Have Exit Taxes
• Historic rehabs
• Tax-exempt bond deals
• Projects with minimum units low-income
• Projects with large accruing loans
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127127Considerations in Negotiating “Exit”
• What’s the property’s value? Greater than debt?• NOI > debt service?• Substantial cash flow?
• Extended use agreement, other long-term rent and income restrictions
• Deferred maintenance, capital improvement needs
• Who wants to own it?
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128Questions to Ask When Evaluating LIHTC Deal
• Is the site a good residential location?• How do the rents compare to market?• Is the operating budget adequate?• Sufficient contingency/developer fee to cover
cost overruns?• Sufficient operating reserves/developer fee to
fund operating deficits?• Does the developer have sufficient capital and
motivation to make it work for 15 years?• Adequate operating “margin for error”?• Exit strategy?