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Tax Exempt Bonds and Housing Tax Credits

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Presentation on theme: "Tax Exempt Bonds and Housing Tax Credits"— Presentation transcript:

1 Tax Exempt Bonds and Housing Tax Credits
IPED HOUSING TAX CREDITS “101” Tax Exempt Bonds and Housing Tax Credits presented by: James Duffy – Nixon Peabody LLP Dan Smith – Novogradac & Company LLP Travis Gibbs – Nixon Peabody LLP Faith Bruins – Nixon Peabody LLP

2 What key piece of advice should I take away from this panel?
Presuming I leave here today and want to develop a successful tax-exempt bond project, what’s my first step? Assemble your team early Accountant Developer’s Bond Counsel Equity Partner Underwriter Local Consultant / Political Liaison

3 What are Tax-Exempt Bonds?
1986 IRC §103(a) Interest Income Federal Exemption State Income Exemption (Generally) Bonds Eligible For Exemption Private Activity Bonds Governmental Bonds §501(c)(3) Tax-Exempt Bonds

4 What do Tax-Exempt Bonds Offer?
Economic Benefit To Buyers Economic Benefit To Issuers Interest Rate Determination Bond Rating Credit Enhancement

5 Why are Developers doing Tax-Exempt Bond Deals?
Demand for Tax Credit Allocations (9% LIHC Deals) Uses conventional financing Only $1.85 Per Capita available - $ 2,125,000 Limited “pool” of tax credits Developers Apply To State Allocating Agencies States Oversubscribed: 4-6 To 1

6 So Are Bonds a Better Way to Go?
Compete For Bonds To Avoid Competition for 9% Tax Credits (Beauty Contest) Bonds Structure Now Feasible Credit Enhancements Available Higher Credit Prices Low interest rates Excess Demand For Bonds ($80.00 Per Capita) $ 239,180,000 Housing Competes With Other Uses More Mixed Income Developments

7 What are the Benefits of Bonds?
Interest Rate Benefit Bond Rating Credit Enhancement Reduced Interest Rate (More Debt!) Possible To Reduce Debt Coverage Ratios “Automatic” 4% Tax Credit Allocation Less Operational Regulations Than LIHC Larger Developments In Better Markets

8 How do I get these Bonds and Who gives them to me?
Bond Issuing States Local Government Entities (Cities, Townships, Counties, HFCs) Qualified IRC §501(c)(3) Organizations And Governmental Units (Tax-Exempt Corporations) Bond Issuance vs. Bond Allocation

9 What Types of Financing are Available?
Multi-Year Construction/Permanent Nominal Permanent Lender Multi-Series

10 Using Conventional Debt Using Tax-Exempt Bond Debt
How are Tax-Exempt Bond Deals Different than Conventional Tax Credit Deals? Equity Debt 9% LIHC Credits Using Conventional Debt 4% Project Using Tax-Exempt Bond Debt

11 Why is there so much less Equity in a Bond Deal?
Reduced Credit Percentage (4% Vs 9%) Tax Losses Are Spread Across A Smaller Amount Of Tax Credit Dollars Result May Be An Increased Credit Price

12 What’s the Difference Between 9% and 4% Credits?
EB x LIOP x CP x 10 = Credits The Credit Percentage is the Tax Credit Percentage Rate published monthly in our LIHC Monthly Report and on our website! October 2004 = 7.98% & 3.42% November 2004 = 7.96% & 3.41%

13 Sounds pretty good!! What are the rules and restrictions I have to follow?
Income Restrictions: 20% at 50% AMGI 40% at 60% AMGI

14 Special Rules: Good Costs vs. Bad Costs
At Least 95% Must Be Used To Pay Or Reimburse “Good Costs” “Good Costs” Include: Land & Depreciable Costs For Income Tax Purposes Paid Or Incurred After The Date Of Inducement Resolution

15 Special Rules: Good Costs vs. Bad Costs
“Bad Costs” Include: Costs incurred prior to Inducement Resolution Intangible Assets Bonds Issuance Costs and Underwriting Loan Origination Fees Amortized over the Permanent Loan Period

16 Special Rules: Good Costs vs. Bad Costs
No More Than 2% Of Proceeds Can Be Used For Bond Issuance Costs Taxable Tails / Owner Equity

17 50% Financing Requirement
If 50% of the Aggregate Basis is Financed by Bond Proceeds, Entire Basis Exempted From LIHC Volume Limitation Aggregate Basis includes: Land And Building Excludes Permanent Loan Fees and Interest, Intangible Assets, Cash Reserves and Lease-Up Costs

18 50% Financing Requirement
If 50% of the Aggregate Basis is Financed by Bond Proceeds, Entire Basis Exempted From LIHC Volume Limitation What does “Financed by” mean??

19 50% Financing Requirement
CAUTION!! States are asking developers to find other sources of financing in order to stretch bond cap Construction overruns and/or delays will adversely affect the 50% calculation

20 Other Effects: Eligible Basis
Difficult To Develop or Qualified Census Tract “Bonus” – Available For Rehabilitation Or New Construction Costs DDA / QCT 130% applied to Eligible Basis Increase in Annual Tax Credit All Bond Issuance Costs Excluded From Eligible Basis

21 Is there anything easier in a Tax-Exempt Bond Deal?
Compared to a 9% / Conventional Debt Deal: Not Subject to Carryover Allocation Rules (10% Test) Placed In Service Within Two Years Bonds Generally Allow Larger Development Generally Less Competition For Bond Allocation Bond Transactions Have Less Social Engineering

22 Sounds Good!!! How do I get started?
Put the Team Together: Accountant Equity Partner Underwriter Local Developer’s Bond Counsel Credit Enhancer

23 How do I put my Deal Together?
Find a potential property and run initial numbers for feasibility of the project Put the team together: Accountant Equity Partner Underwriter Local Developer’s Bond Counsel Credit Enhancer

24 How do I put my Deal Together?
Issuer passes inducement resolution Credit enhancement commitment Private activity bond application submitted to Issuing Authority

25 How do I put my Deal Together?
Public notice of the project (2 weeks) TEFRA hearing held The Tax Equity and Fiscal Responsibility Act

26 How do I put my Deal Together?
Private activity bond application approved Bond allocation awarded Tax credit application submitted

27 How do I put my Deal Together?
Bond counsel drafts documents required for closing Bond Indenture Loan agreement Regulatory agreement Underwriter-due diligence POS preliminary official statement Credit enhancer documents Tax credit investor documents Partnership agreement

28 How do I put my Deal Together?
Issuer passes bond resolution including the following: Issuer’s approval of TEFRA hearing Private activity bond allocation Credit enhancement commitment Bond rating from agency Preliminary official statement

29 How do I put my Deal Together?
Underwriter prices and contracts for selling the bonds Bond purchase agreement Bond Closing Final Official Statement

30 What does a typical Tax-Exempt Bond Structure Look Like?
Bond Holder Bond Issuer LIHC Partnership “Borrower” Credit Enhancer Trustee Bond Underwriter Bond Purchase Contract Official Statement Bonds Bond Proceeds Indenture Payments of Principal & Interest Loan Agreement Deed of Trust Enhancement Reimbursement Agreement

31 Glossary Bond Counsel:
Attorney representing the bond issuer and bondholders. The attorney provides an opinion that the interest on the bonds is exempt from federal taxation. Responsible for the bond inducement resolution, bonds, the bond indenture, the financing agreement, the regulatory agreement and the tax opinion.

32 Glossary Inducement Resolution:
A resolution passed by the bond issuer communicating the intent to issue bonds for a specific activity. Official Statement: The marketing prospectus used by underwriters to sell the bonds. The official statement summarizes the terms of the bonds and other information relevant to the investment decision.

33 Glossary Arbitrage Yield Restriction:
Arbitrage occurs when tax-exempt bond proceeds are invested in securities that yield a greater return than the interest charged on the bonds. Restrictions exist on the amount of arbitrage bonds can earn without putting the tax-exempt status of the bonds in peril. In instances where the restriction is violated, exceptions exist that allow for the tax-exempt status of the bonds to remain intact.

34 Glossary Bond Issuer: Governmental or Non-Profit entity responsible for issuing the bonds. Credit Enhancer: For fee, guarantees that the bondholders will receive scheduled bond payments. Indenture: An agreement between the bond issuer and the trustee containing the terms and procedures for payment of the bonds.

35 Glossary Rating Agency:
Agencies that determine or “rate” the investment risk of the bonds. Examples include Standard & Poor’s and Moody’s Investor Services. Regulatory Agreement: An agreement entered into between the borrower, the bond issuer and the trustee specifying the income rent and income restrictions a project owner must comply with for the bonds to retain their tax exempt status.

36 Glossary TEFRA Hearing:
The bond issuer’s public notice, public hearing and approval by elected officials of a bond issuance. Underwriter: An investment bank that underwrites and markets the bonds to investors.

37 Contact Information: Dan Smith Novogradac & Company LLP 303 W. Third Street Dover, OH Phone: (330) Fax: (330)

38 QUESTIONS ??? For free tax credit resources: Go to
Or us at:

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