All posts by Arthur J. Momjian

Treasury Announces NMTC Awards

The U.S. Department of the Treasury’s Community Development Financial Institutions Fund today announced $3.5 billion in New Markets Tax Credit awards aimed at revitalizing low-income communities and increasing economic opportunity nationwide. A total of 87 organizations across the country received tax credit allocation authority under the calendar year 2013 round of the New Markets Tax Credit Program. This round awarded today represents the last round of New Markets Tax Credit authority currently authorized by Congress.

Art Momjian to Speak on Historic Tax Credits at Duane Morris CLE Program

On Tuesday April 8, 2014 Art Momjian Chair of the Duane Morris Affordable Housing, Community Development, and Syndication Practice Group will speak at a continuing legal education program titled “The Historic Tax Credit Program: Who is a Partner after the New IRS Safe Harbor Rules and the Historic Boardwalk Hall”. The Program is scheduled for 12:30 pm EST at the Philadelphia Office of Duane Morris LLP. The program will also be video cast in most of the Duane Morris national offices. For further information and to register please contact either Art Momjian at ajmomjian@duanemorris.com or Richard Weinstein at rmweinstein@duanemorris.com.

New Markets Tax Credit Allocation Award Update from CDFI Fund

On July 29, 2013, the CDFI Fund published the Notice of Allocation Authority (“NOAA”) for the calendar years 2013 and 2014 Allocation Round of the Federal New Markets Tax Credit (“NMTC”) Program. The NOAA announced the availability of up to $8.5 billion of NMTC allocation authority for calendar years 2013 and 2014, $3.5 billion of which was authorized by the American Taxpayer Relief Act of 2012 and an additional $5 billion which was subject to Congressional authorization. The CDFI Fund has not received Congressional allocation authority for calendar year 2014. As a result, the CDFI Fund has amended the NOAA to award the authorized allocation authority for only calendar year 2013 in the amount of $3.5 billion. The CDFI Fund announced that it anticipates making awards under the calendar year 2013 round in late spring of 2014.

Historic Tax Credit Safe Harbor – Part III: Investor’s Capital Contributions

Revenue Procedure 2014-12 (the “Rev Proc”) which establishes a safe harbor for structure Federal Historic tax credit transactions provides guidance on the staging of capital contributions by the Historic Tax Credit investor. First, the Rev Proc requires that at least 20% of the tax credit investor’s aggregate capital contribution be contributed before the project is placed in service. In this vein at least 75% of the tax credit investor’s aggregate capital contribution must be fixed at the time of placement in service of the project. The effect of these two requirements of the Rev Proc is to limit the provision in the sponsor’s partnership agreement or master tenant agreement which would adjust the capital required to be contributed by the tax credit investor to 25% of the scheduled investor capital contribution of the tax credit investor. Finally the Rev Proc provides an example to illustrate that the tax credit investor’s expected fixed capital commitment may be conditioned upon the achievement of mutually agreed upon milestones (e.g., receiving National Park Service approvals, leasing the Building to tenants).

Historic Tax Credit Safe Harbor – Part II: Guarantees

Revenue Procedure 2014—12 (the “Rev Proc”) issued by the Internal Revenue Service creates a safe harbor for investors in the Federal Historic Tax Credit. Traditionally the tax credit investor has obtained a guaranty with respect to the benefit of the Federal Historic tax credit from the sponsor of the transaction. However, the Rev Proc prohibits funded guarantees and certain “impermissible guarantees. “Impermissible” guarantees are defined as guarantees: (1) to insure the Investor’s ability to claim the historic tax credit, or the repayment of any portion of the Investor’s contribution due to inability to claim historic tax credit in the event the Internal Revenue Service (the “Service”) Service challenges all or a portion of the transactional structure of the Partnership; (2) that the Investor will receive Partnership distributions or (3) to pay the Investor’s costs or indemnify the Investor for the Investor’s costs if the Service challenges the Investor’s claim of the historic tax credit. The Rev Proc defines permitted guarantees as guarantees: (1) for the performance of any acts necessary to claim the historic tax credit; (2) for the avoidance of any act (or omissions) that would cause the Partnership to fail to qualify for the historic tax credits or that would result in a recapture of historic tax credit; and, (3) that are not described as impermissible guarantees . The Rev Proc also provides the following as examples of unfunded guarantees permitted: completion guarantees, operating deficit guarantees, environmental indemnities, and financial covenants.

The Historic Tax Credit Safe Harbor – Part I

Revenue Procedure 2014—12 (the “Rev Proc”) issued by the Internal Revenue Service creates a safe harbor for investors in the Federal Historic Tax Credit. It is anticipated that in the aftermath of the Rev Proc changes will be made in the underwriting and structuring of Federal Historic Tax Credit transactions. The Rev Proc requires that a tax credit investor receive reasonably anticipated value, exclusive of tax benefits, as a result of its investment in developer partnership or master tenant. The issue of value may be satisfied by the traditional preferential return although a preferential return cannot be guaranteed and must be dependent upon the success of the project. With respect to the back end, the Rev. Proc prohibits an option to the developer to purchase the Investor’s interest but does permit the traditional “put” right of the tax credit investor to sell its interest to the sponsor as long as the sale is for not more than the fair market of the value of the investor’s interest and the tax credit investor does not abandon its interest. Accordingly it appears that the traditional preferred return to the tax credit investor and the investor “put” right are preserved by the Rev. Proc provided that the preferred return is not guaranteed and the economic interest of the tax credit investor is not reduced by “unreasonable” fees and expenses which would distort the economic benefit to the tax credit investor.

New Bill Would Increase and Make Permanent the New Markets Tax Credit Program

Last week the “Invest in the United States Act of 2014” was introduced into the House of Representatives as H.R. 3939. If enacted, this Act would be permanently extend the Federal New Markets Tax Credit Program. The Act would also establish an annual allocation of Federal New Markets Tax Credit authority of $5 billion, indexed for inflation. The Invest in United States Act of 2014 has been referred to the House Commitee on Ways and Means, Transportation and Infrastructure, and Education and the Workforce.

Manufacturing Communities Investment Act would Extend and Increase NMTC Program

In response to the decline in manufacturing jobs in certain parts of the Country, the Manufacturing Communities Investment Act was introduced to the Senate. This Bill which would extend the Federal new markets tax credit (NMTC) Program through 2016 with an increase in the annual NMTC allocation from $3.5 billion to $5 billion in calendar years 2014, 2015 and 2016. In addition the Bill would authorize an additional $1 billion in NMTC allocation for 2014, 2015, and 2016 which would be allocated by the CDFI Fund to CDEs whose mission is investments in communities affected by major manufacturing job losses. The Bill has been referred to the Senate Finance Committee.

IRS Publishes Safe Harbor for Historic Tax Credit Investors

In an effort to stabilize the Federal Historic Tax Credit industry in the aftermath of the Third Circuit Decision in Historic Boardwalk Hall LLC , the Internal Revenue Service (the “IRS”) published Revenue Procedure 2014-12 (the “HTC Rev Proc”) which outlines a safe harbor for investors (an “Investor”) in Federal Historic Tax Credits (the “Tax Credit”). An Investor receives the Tax Credit through an ownership interest in a partnership which owns and develops a historic building or through the election of the partnership to pass the Tax Credit to a master tenant owned by the Investor. Continue reading IRS Publishes Safe Harbor for Historic Tax Credit Investors

HUD Announces Additional $1.5 Billion in Sandy CDBG Funds

One year after Hurricane Sandy devastated coastal communities in the Northeast, the U.S. Department of Housing and Urban Development (HUD) announced an allocation of a combined $5.1 billion through a second round of recovery funds to five states and New York City. Provided through HUD’s Communty Development Block Grant (“CDBG”) Program, these CDBG recovery funds will assist impacted communities to meet remaining housing, economic development and infrastructure needs. In this second Sandy allocation, grantees will be required to identify unmet needs for housing, economic development and infrastructure and may use this allocation to address those unmet needs. Grantees will be required to incorporate a risk assessment in their planning efforts to ensure long term resilience. The Second HUD CDBG Sandy Allocation has been made to the following: New York City – $1,447,000,000; New Jersey – $1,463,000,000; New York State – $2,097,000; Connecticut – $66,000,000; Maryland – $20,000,000; and Rhode Island – $16,000,000.