Texas Register, Volume 37, Number 38, Pages 7327-7532, September 21, 2012 Page: 7,407
7327-7532 p. ; 28 cm.View a full description of this periodical.
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Figure: 10 TAC 10.621(j)
(k) Figure 10 TAC 10.621(k) lists ten events of noncompli-
ance associated with individual Units. The first column of the chart
identifies the noncompliance event. The second column identifies the
number of points assigned this event while the issue is uncorrected.
The Material Noncompliance threshold for a HTC or Exchange De-
velopment is 30 points. The Material Noncompliance threshold for
a non-HTC property with 1-50 Low Income Units is 30 points. The
Material Noncompliance threshold for a non-HTC Development with
51-200 Low Income Units is 50 points. The Material Noncompliance
threshold for non-HTC properties with 201 or more Low Income Units
is 80 points. The third column lists the number of points assigned to
the event from the date the issue is corrected until three (3) years after
the event is corrected. The fourth column indicates what programs the
noncompliance event applies to. The last column indicates if the issue
is reportable on Form 8823 for HTC Developments.
Figure: 10 TAC 10.621(k)
10.622. Alternative Dispute Resolution.
(a) It is the Department's policy to encourage the use of ap-
propriate Alternative Dispute Resolution (ADR) procedures to assist in
resolving disputes under the Department's jurisdiction. If at any time
an applicant or other person would like to engage the Department in
an ADR process, the person may send a proposal to the Department's
Dispute Resolution Coordinator. For additional information on the De-
partment's ADR Policy, see the Department's General Administrative
Rule on ADR at 1.17 of this title.
(b) In all phases of monitoring (construction and throughout
the entire Affordability Period), if a potential issue of noncompliance
has been identified, Owners will be provided a written notice of non-
compliance. In general, the Department will provide up to a ninety (90)
day corrective action period which can and will be extended for an ad-
ditional ninety (90) days if there is good cause and the Owner requests
an extension during the corrective action period.
(c) Owners must respond to the Department's notice of non-
compliance. If an Owner does not respond, this ADR process which is
explained in this section cannot be initiated.
(d) If an Owner does not agree with the Department's assess-
ment of compliance, they should clearly explain their position and pro-
vide as much supporting documentation as possible. If the position
is reasonable and well supported, the issue of noncompliance will be
cleared with no further action taken, i.e., for HTC properties, Form
8823 will not be filed with the IRS and the issue will not be scored in
the Department's compliance status system.
(e) If an Owner's response indicates disagreement with the De-
partment's assessment of noncompliance, but does not appear to be a
valid concern to the Department, staff will notify the Owner in writing
of their right to engage in ADR. The Owner must respond in five (5)
days and request ADR. In addition, the Owner must request an exten-
sion of the corrective action deadline, if one is still available. If the
Owner does not respond to the staffs invitation to engage in ADR, the
Department's assessment of the violation is final.
(f) The Department must meet the Treasury Regulation
requirement found in 1.42-5 and file Form 8823 within forty-five
(45) days after the end of the corrective action period. Therefore, it is
possible that the Owner and Department may still be engaged in ADR.
In this circumstance, the Form 8823 will be filed. However, it will be
sent to the IRS with an explanation that the Owner disagrees with the
Department's assessment and is pursuing ADR. All Owner supplied
documentation supporting their position will be supplied to the IRS.
Although the violation will be reported to the IRS within the requiredtimeframes, it will not be scored in the Department's compliance status
system pending outcome of ADR.
(g) ADR is not an appropriate format for matters regarding
interpretations of laws, regulations and rules. ADR can only be used
when parties could reach consensus.
10.623. Liability.
Compliance with the program requirements, including compliance
with 42 of the Code, is the sole responsibility of the Development
Owner. By monitoring for compliance, the Department in no way
assumes any liability whatsoever for any action or failure to act
by the Development Owner, including the Development Owner's
noncompliance with 42 of the Code, the Fair Housing Act, 504 of
the Rehabilitation Act of 1973, HOME program regulations, BOND
program requirements, and all other programs monitored by the
Department.
10.624. Applicability.
Unless otherwise noted, this subchapter applies to all Developments
administered by the Department.
10.625. Temporary Suspension of Other Sections of this Subchapter.
(a) Temporary suspensions of other sections of this subchap-
ter may be granted by the Executive Director if there are extenuating
circumstances which make it not possible or an undue administrative
burden to comply with a requirement of this subchapter as long as sub-
stantial compliance is still in effect. For example, the Executive Direc-
tor could suspend the requirement to report online or use Department
approved forms, or alter the sample size for calculating a utility al-
lowance using the actual use method.
(b) Under no circumstances can the Executive Director or the
Board suspend for any period of time compliance with the HOME Final
Rule or regulations issued by HUD when required by federal law.
(c) Under no circumstances can the Executive Director or the
Board suspend for any period of time Treasury Regulations, IRS pub-
lications controlling the submission of Form 8823, or any sections of
26 U.S.C. X42.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal author-
ity to adopt.
Filed with the Office of the Secretary of State on September 10,
2012.
TRD-201204679
Timothy K. Irvine
Executive Director
Texas Department of Housing and Community Affairs
Earliest possible date of adoption: October 21, 2012
For further information, please call: (512) 475-3916
# 4 4
SUBCHAPTER G. FEE SCHEDULE, APPEALS,
AND OTHER PROVISIONS
O10 TAC 10.901 - 10.904
The Texas Department of Housing and Community Affairs (the
"Department") proposes new 10 TAC Chapter 10, Subchapter
G, 10.901 - 10.904, concerning Fee Schedule, Appeals, and
Other Provisions. The purpose of the proposed new sections is
to provide for fees paid to the Department in order to cover thePROPOSED RULES September 21, 2012 37 TexReg 7407
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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/m1/80/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.