For projects that include LIHTC and other financing provided by DHCD, the following requirements apply in addition to the processing steps previously outlined. If only LIHTC are requested, however, only the following procedures are required. Additional requirements for the LIHTC program are also set forth in the QAP. Applicants are encouraged to review the QAP prior to submitting an application for LIHTC. In the event of any discrepancies between LIHTC requirements and/or processes described in this Program Guide and the QAP, the requirements and/or processes in the QAP prevail.
7.2.1 LIHTC Reservations
Following approval, sponsors receive either LIHTC reservation letters or allocations, depending on the timing of the funding round. Reservation letters are conditional commitments to allocate LIHTC. Reservations or allocations are for only the amount of LIHTC, in the sole determination of DHCD, necessary for the financial feasibility of projects and their viability as a qualified low-income housing. Each reservation is further subject to a number of conditions. These conditions include the submission of evidence of timely completion of the project and documentation certifying compliance with federal requirements. Owners are also required to verify project costs as a condition of receiving a Carryover Allocation (as defined below) and again when the project is placed in service. Reservations may be cancelled and projects withdrawn from processing for the same reasons discussed previously in the loan reservation section (see Section 7.1.1).
7.2.2 Limitations on Eligible Basis
DHCD exercises its discretion under §42(d)(5)(B)(v) and §42(m)(2)(A) and (B) of the Code to limit eligible basis to an amount it determines to be reasonable and necessary for the long-term viability of projects as affordable housing. This is not a limitation on the amount of eligible basis allowable to projects under the Code, and projects with eligible basis allowable under the Code that exceeds the feasibility limit imposed by DHCD may still be eligible for LIHTC. The maximum amount of LIHTC allocated to projects by DHCD, however, will be calculated based on the eligible basis limit applicable to each project as determined by the cost limitations and other restrictions contained in this Program Guide.
7.2.3 LIHTC Allocations
Sponsors either must place projects in service within the year in which LIHTC are allocated or qualify for a binding conditional commitment to carryover LIHTC for up to two (2) years (a Carryover Allocation). To qualify for a Carryover Allocation, sponsors must either:
Meet all conditions in their reservation and Incur at least 10% of the reasonably expected basis, as defined in §42 of the Code, within ten (10) months of the date of the Carryover Allocation; or
For sponsors receiving a LIHTC reservation for the current calendar year, submit a certification of expenditures-to-date and an estimate of the project’s total reasonably expected basis by December 1st of the year the Carryover Allocation is executed by DHCD.
For projects also receiving a loan from DHCD, DHCD expects sponsors to meet the 10% test by the time DHCD’s loan commitment is issued.
To keep Carryover Allocations and receive IRS Form(s) 8609 (as discussed below), projects must be placed in service by the end of the second year following the date of the Carryover Allocation. Once projects are placed in service, the sponsor must request IRS Form(s) 8609 from DHCD no later than ninety (90) calendar days after the first year the credit is claimed for the first building receiving an allocation. If sponsors elect to defer the first year of the credit period until the succeeding tax year, DHCD must be notified in writing no later than ninety (90) calendar days after the original required placed in service deadline for the project.
At the time buildings are placed in service, all required post-completion documentation is received and reviewed, and upon receipt of the request described above, DHCD prepares and issues the IRS Form(s) 8609 (Low-Income Housing Credit Allocation Certification) certifying the final amount of LIHTC allocated to each building in a project. A Form 8609 is needed to claim LIHTC for any building in a project. Before Form(s) 8609 is issued, DHCD must receive and approve certain documents for each project, including the following:
Organizational documents of the project owner;
Extended low-income housing covenant in the form determined by DHCD and recorded
no later than the end of the first year of the tax credit period;
Documentation of placed-in-service date(s) and acquisition settlement statement; Professionally prepared third-party audit of project sources and uses and statement of
eligible LIHTC basis for each building;
An executed final determination of DHCD mortgage proceeds;
Full payment of all DHCD loan and LIHTC fees; and
It is recommended that sponsors obtain from DHCD the most current list of required documents pertaining to each individual project for proper and timely processing of IRS Form(s) 8609.
Prior to issuance of IRS Form(s) 8609, DHCD also undertakes a final evaluation of each project to determine the amount of LIHTC needed to make the project feasible. Only the amount needed for financial feasibility and viability as qualified low-income housing throughout the fifteen (15) year compliance period is allocated. Any additional LIHTC previously allocated to projects will be recaptured.