Texas Register, Volume 37, Number 38, Pages 7327-7532, September 21, 2012 Page: 7,383
7327-7532 p. ; 28 cm.View a full description of this periodical.
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(f) Carryover (Competitive HTC Only). All Developments
which received a Commitment, and will not be placed in service and
receive IRS Form 8609 in the year the Commitment was issued, must
submit the Carryover documentation, in the form prescribed by the De-
partment in the Multifamily Programs Procedures Manual, no later than
the Carryover Documentation Delivery Date as identified in 11.2 of
this title (relating to Program Calendar for Competitive Housing Tax
Credits) of the year in which the Commitment is issued pursuant to
42(h)(1)(C) of the Code.
(1) Commitments for credits will be terminated if the Car-
ryover documentation, or an approved extension, has not been received
by this deadline. This termination is final and not appealable, and im-
mediately upon issuance of notice of termination staff is directed to
award the credits to other qualified Applicants based on the approved
waiting list.
(2) If the interim or permanent financing structure, syndi-
cation rate, amount of debt or syndication proceeds are finalized but
different at the time of Carryover from what was proposed in the orig-
inal Application, applicable documentation of such changes must be
provided and the Development may be reevaluated by the Department.
(3) All Carryover Allocations will be contingent upon the
Development Owner providing evidence that they have and will main-
tain Site Control through 10 Percent Test or through the anticipated
closing date, whichever is earlier. For purposes of this paragraph, Site
Control must be identical to the Development Site that was submitted at
the time of Application submission as determined by the Department.
(4) Evidence that the Development Owner entity has been
formed must be submitted with the Carryover Allocation.
(5) The Department will not execute a Carryover Alloca-
tion Agreement with any Development Owner having any member in
Material Noncompliance on October 1 of the current program year.
(g) 10 Percent Test (Competitive HTC Only). No later than
July 1 of the year following the submission of the Carryover Allocation
Agreement, the Development Owner must incur more than 10 percent
of the Development Owner's reasonably expected basis, pursuant to
42(h)(1)(E)(i) and (ii) of the Code (as amended by The Housing and
Economic Recovery Act of 2008), and Treasury Regulations, 1.42-6.
The evidence to support the satisfaction of this requirement must be
submitted to the Department no later than the 10 Percent Test Docu-
mentation Delivery Date as identified in 11.2 of this title. The Devel-
opment Owner must submit, in the form prescribed by the Department,
documentation evidencing paragraphs (1) - (5) of this subsection, along
with all information outlined in the Post Carryover Activities Manual.
The 10 Percent Test documentation will be contingent upon the sub-
mission of these items as well as all other conditions placed upon the
Application in the Commitment. Documentation to be submitted in-
cludes:
(1) evidence that the Development Owner has purchased,
transferred, leased, or otherwise has ownership of the Development
Site;
(2) for New Construction, Reconstruction, and Adaptive
Reuse Developments, a certification from a Third Party civil engineer
stating that all necessary utilities will be available at the Development
Site and that there are no easements, licenses, royalties or other con-
ditions on or affecting the Development that would materially and ad-
versely impact the ability to acquire, develop and operate as set forth
in the Application. Copies of such supporting documents will be pro-
vided upon request;
(3) a Management Plan and an Affirmative Marketing Plan
as further described in the Post Carryover Activities Manual;(4) evidence confirming attendance of the Development
Owner or management company at Department-approved Fair Hous-
ing training, relating to leasing and management issues, for at least five
(5) hours and of the Development architect or engineer responsible
for Fair Housing compliance at Department-approved Fair Housing
training, relating to design issues, for at least five (5) hours on or
before the time the 10 Percent Test Documentation is submitted.
Certifications must not be older than two (2) years from the date of
submission of the 10 Percent Test Documentation; and
(5) a Certification from the lender or syndicator identifying
all Guarantors.
(h) Construction Status Report. Within three (3) months of
the close of the construction loan or partnership agreement, whichever
comes first, and every quarter thereafter all multifamily developments
must submit a construction status report consisting of the items identi-
fied in paragraphs (1) - (4) of this subsection for the first report and
items identified in paragraphs (3) and (4) of this subsection for all
subsequent reports unless changes to the original submissions of para-
graphs (1) and (2) of this subsection have occurred, in which case such
amendments shall also be submitted with the subsequent report. Con-
struction status reports shall be due within ten (10) days of the first day
of each quarter (January, April, July, and October) and continue on a
quarterly basis until the entire development is complete and all units
are placed in service, whereupon a final report will be due:
(1) the executed partnership agreement with the investor or
other documents setting forth the legal structure and ownership;
(2) the executed construction loan agreement. If the loan
has not closed, the anticipated closing date must be provided and, upon
closing, the agreement must be provided to the Department;
(3) the construction contract and the most recent AIA G702
and G703 (or equivalent) certified by the Architect of Record; and
(4) all Third Party construction inspection reports not pre-
viously submitted.
(i) LURA Origination (Competitive HTC Only). After the De-
partment receives the Construction Status Report, the Department will
generate a LURA for the Development Owner that will impose the in-
come and rent restrictions identified in the Development's final under-
writing report and other representations made in the Application, in-
cluding but not limited to, specific commitments to provide tenant ser-
vices, to lease to Persons with Disabilities and/or to provide specific
amenities. The executed LURA and all exhibits will be sent to the De-
velopment Owner whereupon the Development Owner will then exe-
cute the LURA and have the fully-executed document and all exhibits
and attachments recorded in the real property records for the county in
which the Development is located. The original recorded LURA must
be returned to the Department no later than the end of the first year of
the Credit Period. In general, no Housing Tax Credit are allowed to be
issued for a building unless there is a properly executed and recorded
LURA in effect at the end of the first year of the Credit Period. Noth-
ing in this section negates a Development Owner's responsibility for
full compliance with 42(h)(6) of the Code. The Department will not
issue IRS Form(s) 8609 until it receives the original, properly-recorded
LURA or has alternative arrangements which are acceptable to the De-
partment and approved by the Executive Director.
(j) Cost Certification. The Department conducts a feasibility
analysis in accordance with 42(m)(2)(C)(i)(II) of the Code to make a
final determination on the allocation of Housing Tax Credits. The re-
quirements for cost certification include those identified in paragraphs
(1) - (3) of this subsection.PROPOSED RULES September 21, 2012 37 TexReg 7383
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Texas. Secretary of State. Texas Register, Volume 37, Number 38, Pages 7327-7532, September 21, 2012, periodical, September 21, 2012; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth288980/m1/56/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.