Pennsylvania to Award State Historic Tax Credits

The Pennsylvania Department of Community and Economic Development is accepting applications for the Commonwealth’s new historic preservation state tax credit. The Commonwealth will issue no more than $3,000,000 of tax credits each year with no more than $500,000 to a qualified taxpayer in any year. The state historic tax credit may not exceed 25% of the qualified rehabilitation expenditures incurred in connection with the qualified historic rehabiliation of a building. The credit may be used to offset the tax liabilty of the Commonwealth of Pennsyvlania imposed on a taxpayer including Personal Income Tax, Corporate Net Income Tax, Capital Stock-Franchise Tax, Bank and Trust Company Shares Tax, Title Insurance CompaniesShares Tax, Insurance Premiums Tax, Gross Receipts Tax or Mutual Thrift Institution Tax. The tax credit provided may be carried over and applied to succeeding taxable years for not more than seven taxable years following the first taxable year for which the qualified taxpayer was entitled to claim the credit. A qualified taxpayer, upon application to and approval by DCED may sell or assign, in whole or in part, unused credits granted to another qualified taxpayer.

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.

Duane Morris Sandy Conference on September 25th

On September 25th the New York City Office of Duane Morris will host a Super Storm Sandy Conference and Reception in its New York City Office. The focus of the Conference is “From Disaster to Recovery: Financing Tools for Development after Super Storm Sandy”. The panelists are Jonathan Gouveia, Senior Vice-President of the Strategic Investment Group of the New York City Economic Development Corporation, Margaret Anadu, Vice President of the Urban Investment Group of Goldman Sachs, George L. Olsen, Managing Principal of the New York City EB-5 Regional Center, and Andrew Rachlin, Vice President and Market Leader of The Reinvestment Fund. The speakers on the panel will discuss the distribution of $4 billion of HUD CDBG monies by the New York City Economic Development Corporation, the allocation by the Treasury of $8.5 billion of New Markets Tax Credit allocation next Spring, and the availability of the Federal EB-5 program for the development of Sandy related projects. The Conference will be from 5 pm to 6 pm followed by a cocktail reception from 6:00 pm to 7:30. For further information and to register contact Art Momjian at

Duane Morris closes Historic Tax Credit Transaction

The Duane Morris team of Art Momjian, of the Philadelphia office, Chris Winter, of the Wilmington office, and Marc Kushner, of the New York office, represented Ci 6E Lancaster Avenue Associates LP in connection with the partnership’s $40,000,000 historic renovation of the Palmer Seminary located in Wynnewood Pennsylvania. The historic buildings of the Palmer Seminary will be renovated into apartments and medical office space. The Duane Morris team represented the partnership in the syndication of Federal Historic Tax credit generated by the transaction.

Creative Structuring Techniques in Real Estate Transactions – the Investor “Flip”

While interest rates for commercial real estate financing remain low, lender underwriting criteria remains very stringent. Lenders require substantial equity, guarantees, as well as strong tenants and general contractors when financing commercial real estate transactions. As a result, creative techniques are required when developing the capital stack of a commercial real estate transaction. One technique to attract equity to a project is to maximize the value of the federal tax benefits of the transaction. A partnership “flip” structure may be used to initially provide an equity investor 99.99% of the profits and losses from the development of the transaction. At a time when the equity investor receives a target yield the interests “flip” and the interests of the sponsor and investor are adjusted to reflect the intended “back end” equity ownership of the equity investor in the project. For the right investor this partnership “flip” structure can enhance the internal rate of return to the investor by combining cash flow with the cash value to the investor of the losses generated by the development of the project.

Demand for NMTC Allocation Remains Strong

The Community Development Financial Institutions (CDFI) Fund announced that under the 2012 round of the New Markets Tax Credit (NMTC) program it had received 282 applications requesting an aggregate of $21.9 billion in NMTC authority. The CDFI Fund also described innovative uses of New Markets Tax Credit Authority which would be favored by the CDFI Fund. Innovative uses of NMTC Authority include the deployment of New Markets Tax Credit proceeds to underserved states, “qualified low-income community investments” (“QLICs”) of $2,000,000 or less, non-real estate QLICIs such as working capial and equipment loans, and revolving QLICs which would serve multiple “qualified active low-income community businesses”. In this vein, the emphasis on non-real estate QLICIs was recently supported by final NMTC Treasury Regulations which facilitate the redeployment of non-real estate QLICIs.

Treasury Issues Final NMTC Regulations

On September 28th the Department of Treasury issued final regulations modifying the New Markets Tax Credit Program to facilitate and encourage investments in non-real estate businesses in low-income communities. To address the concern that an investment in a non-real estate business would result in a liquidity event for the community development entity prior to the expiration of the 7 year compliance period, the final regulations provide that a CDE may reinvest a qualified low-income community investment during the compliance period in a “qualifying entity” provided that such reinvestment occurs within 30 days. A “qualifying entity” is defined as a certified CDFI or an entity designed by the Secretary of the Treasury. The regulations define a non-real estate qualified active low-income community business as any business whose predominant business activity (measured by more than 50% of the business’ gross income) does not include the development, management or leasing or real estate.

Duane Morris Forms Puerto Rico Renewable Energy Practice Group

Combining the capabilities of several strong practice areas of the firm, Duane Morris LLP has formed a Puerto Rico Renewable Energy Interdisciplinary Practice Group.  This interdisciplinary practice group works with developers, lenders, investors, and private equtiy funds in the development of renewable energy projects in Puerto Rico.  Dependent upon the importation of fossil fuels, Puerto Rico’s energy costs are very high making renewable energy a very cost effective alternative. In addition, the Puerto Rico Electric Power Authority has encouraged the development of renewable energy projects in the Island though the issuances of power purchase agreements with renewable energy developers. Members of the group consist of Larry Diamond and Marco Gonzalez of the firm’s Puerto Rico Practice Group, Jim McTarnaghan, and Phyllis Kessler of the firm’s Renewable Energy Practice Group, Nat Abramowitz ,who practices in the finance and bond field, and Art Momjian, who specializes in Federal tax credit programs including the federal renewable energy investment tax credit.

Freshman Members of Congress Urge Extension of NMTC Program

On September 18, 2012 twelve freshman members of the House of Representatives signed a letter addressed to the leaders of Congress urging the extension of the Federal New Markets Tax Program which expired on Dec. 31, 2011. The authors of the letter urged that the New Markets Tax Credit Program is a critical tool for financing small businesses and creating jobs. Proposed Senate Bill 3531 provides for a two year extension of the New Markets Tax Credit Program at $3.5 billion of allocation per year. The President had requested an extension of the New Markets Tax Credit Progam at $5 billion a year wth a specific set aside for super markets in food deserts.

Life After the Historic Boardwalk Case

In the aftermath of the Third Circuit Court of Appeal’s decision in the Historic Boardwalk Case, investors, accountants, attorneys, and developers have been analyzing and discussing the ramifications of this case for the Historic Tax Credit industry. Several historic tax credit investors have indicated that they are on hold for future historic tax credit investments and many tax counsels to historic tax credit investors have indicated challenges to their ability to issue tax benefit legal opinions to their clients. Some of the preliminary pronouncements from the Historic Tax Credit industry are that future deals will need to generate real cash flow which will not be paid for by investors, non-profit deals will be challenging because of the real lack of upside potential, and for tax opinions to be issued deals may need to be structured to follow the safe harbor provided by the Internal Revenue Service in Revenue Procedure 2007-65 which addressed the partnership flip with the wind production tax credit. In a nutshell, it may be a period of time before the historic tax credit syndication market opens again and when it does it may look a lot different than before the Historic Boardwalk Case.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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