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.
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.
The State of New York has published its action plan in connection with the first $1.7 billion in Federal CDBG-DR aid appropriated by the United States Congress, and allocated to New York State, for Sandy disaster relief. Using this first allocation, the State will focus principally on meeting the immediate needs for housing and business assistance in the communities affected by recent storms; assisting county and local governments to cover both their emergency expenses and the matching fund requirements that must be met to repair and mitigate key infrastructure projects; and, by leveraging private financing, assisting critical facilities that suffered damage to install energy-related mitigation (e.g., combined heat and power systems) to withstand future natural disasters. Continue reading New York State Publishes Sandy Action Plan
New Jersey has published its action plan for the $1.8 billion CDBG grant allocated by HUD to assist the State’s Hurricane Sandy recovery efforts. The public comment period for the action plan will end at 5:00 pm on March 19. Additional allocations are expected to be made at subsequent dates to be determined by HUD. Funds must be spent within two years unless HUD provides an extension. Governor Christie has designated the New Jersey Department of Community Affairs as the entity responsible to HUD for administering the distribution of CDBG funds for New Jersey. The action plan provides for the distribution of the $1.8 billion of CDBG funds in the following areas: homeowner assistance; rental housing; economic revitalization; and support for state and local agencies. Within each category are a variety of programs to address specific recovery needs. As an example, with respect to rental housing, $100,000,000 is designated to facilitate the creation of quality, affordable housing units to help New Jersey recover from the loss of multi-family housing. CDBG funds will be provided as zero- and low-interest loans to qualified developers to leverage 9% and 4% low income housing tax credits, tax-exempt bonds and stand-alone financing to support development. Awards will be limited to $120,000 per unit. Similarly $75,000,000 will be awarded through NJEDA in amounts up to $10,000,000 to redevelopment agencies, municipalities, businesses and nonprofits, including CDFIs and CBDOs for community revitalization. These funds may be used for property acquisition, demolition, site preparation and infrastructure repair and installation as well as physical improvement and expansion of existing facilities.
During the past several years as a result of reduced federal and state subsidies, the 4% Federal low-income housing tax credit has been an infrequently used Federal subsidy. However, with the competitiveness and unclear future of the Federal New Markets Tax Credit Program and the conservative underwriting of conventional debt, the 4% Federal low-income housing tax credit may have a new role for a wide range of projects. The advantages of the 4% Federal low-income housing tax credit are that it is virtually automatically available for residential rental projects with at least 20% of the units set aside for low to moderate income tenants and whose project costs are at least 50% financed with volume cap tax-exempt bonds. Accordingly market rate projects with a desire or requirement to set aside affordable units can both access tax-exempt financing and generate additional equity through the use of the 4% Federal low-income housing tax credit. In addition, the amount of the tax credit is only limited by eligible costs and may be increased if the project is located in a qualified census tract or difficult to develop area. Further in certain instances a percentage of the cost basis of community service facilities may be included in eligible basis and generate additional equity. In any apartment or mixed use development consideration should be given to the potential equity to be generated by the 4% Federal low-income housing tax credit.
The change in focus of the Federal New Markets Tax Credit Program to non-real estate businesses together with the high demand on the Program has deprived the real estate industry of a very valuable financing subsidy. Developers could use the New Markets Tax Credit Program to generate a subsidy of almost 20% of total project costs. The unavailabilty of the Program going forward will necessitate a new look at some old subsidies. For example, residential rental properties financed with volume cap tax-exempt bonds are eligible for the 4% Federal low-income housing tax credit without competition. The trade off for this subsidy is the restriction of the rental units to tax credit tenants for 30 years. However, this credit subsidy may be a very attractive where market and tax credit units are very similar or the project is focused on senior tenants. Similar traditional subsidies worth looking at in a new light include tax increment financing, financing through the EB-5 Program, and the variety of funding and subsidies available for green properties and properties using renewable energy. There may be some very creative uses for established subsidy programs in the development of new real estate projects.
Renewable Energy projects can be viewed as falling into one of three categories. A large and growing industry is the residential solar project market. This market consists of large operators which through their dealer networks have developed a very popular and profitable model for homeowner installation. A well-established market is the utility-scale projects. This market benefits from the demand from traditional owners of energy plants, infrastructure funds and private-equity funding. The third category is the small scale commercial market. While the economics of the small scale market are strong, the market suffers from the inability of sponsors to access the debt and tax credit markets for small commercial projects. In addition, the complexity of renewable energy projects generates substantial transactional costs which are more difficult to be absorbed by smaller commercial projects. Attorneys in the interdisciplinary renewable energy group at Duane Morris are working with middle-market renewable energy sponsors to aggregate small scale renewable energy projects to a critical mass. These projects will then be rolled up to a private equity fund which has access to capital at very favorable interest rates. In addition, the aggregation of the projects generates a larger renewable energy investment tax credit which is more attractive to tax credit investors.
On August 2nd the Senate Finance Committee voted to renew the wind power production tax credit that is set to expire at the end of this year with the proposed Wind Powering America Jobs Act. The bill is expected to go to the Senate floor when Congress returns from summer recess. Wind farms can generally choose to receive a continuing credit of 2.2 cents per kilowatt-hour of electricity produced or receive a one-time payment equivalent to 30 percent of the cost of developing a project. Currently the production tax credit and the option to elect the 30 percent renewable energy investment tax credit will expire at the end of 2012. In contract, the renewable energy investment tax credit for solar projects will continue through the end of 2016. However, it is unclear if the House will support a renewal of the wind production tax credit.
The expiration of the Section 1603 grant in lieu of the federal renewable energy tax credit has had a substantial adverse impact on the development of renewable energy projects in the Country. While some projects were able to grandfather the benefits of the Section 1603 grant by incurring the required costs in 2011, these projects will disappear during the year. In addition, although the grant provides money in lieu of the tax credit it does not monetize the losses associated with the project which most developers do not have the taxable income to use. As a result, less equity is generated for these projects. Historically the renewable tax credit investment community has serviced the very large utility size projects and not the middle market. Duane Morris attorneys are working with investors in the low-income housing, historic, and new markets tax credit industries to educate these investors to the structures and opportunities available for middle market renewable energy tax credit transactions. It is hoped that in the near future a group of investors will emerge to service middle market renewable energy tax credit transactions.
Since the inception of the Federal New Markets Tax Credit program, the industry has evolved from the traditional phase of understanding how to use the program, to the tax credit investors driving the transaction, to most recently the community development entities with allocation controlling the benefits of the program. As a result of the scarcity of New Markets Tax Credit allocation, the historic equity benefit generated to the sponsors of projects has slowly diminshed. In contrast during the recent Duane Morris Real Estate and Finance Reception the guest speaker Bill Hankowsky described the extremely favorable terms of market rate financing for those borrowers in the “fairway”, e.g. meet the current underwriting criteria of conventional lenders. As a result, there is a diminishing gap between the cost of New Markets Tax credit subsidized financing and market rate financing for those sponsors who are in the “fairway”. Sponsors should consider whether they fall within the “fairway” of conventional financing when developing the capital stack of a project.