IRS Extends COVID-19 Relief for LIHTC and Tax-Exempt Bond Properties

person A.J. Johnson today 01/11/2022

On Friday, January 14, 2022, the IRS will release a notice (2022-05) extending widespread temporary relief from certain requirements for low-income housing tax credit (LIHTC) financed and private activity tax-exempt bond-financed properties due to the COVID-19 pandemic. Extended relief will include:

  • Relief for the 10% test for carryover allocations. If the original deadline for an owner to meet the 10% test for carryover allocations is on or after April 1, 2020 and on or before December 31, 2020, the deadline is extended to the original deadline plus two years. If the original deadline is on or after January 1, 2021 and before December 31, 2022, the deadline is extended to December 31, 2022;
  • The 24-month minimum rehabilitation period. If  the original  deadline for  the 24-month minimum  rehabilitation  expenditure period for  a building  originally  is  on or  after April  1,  2020,  and is  on  or  before December  31,  2021,  then  that  deadline is extended  to  the  original  date  plus  18  months. If  the original  deadline  for  this  requirement  is  on or  after  January  1,  2022,  and on or  before June  30,  2022,  then  that  deadline is  extended to June 30,  2023. If  the original  deadline  for  this  requirement  is  on or  after  July  1,  2022,  and on or before  December  31,  2022,  then that  deadline  is  extended to the original  date plus  12 months. If  the original  deadline  for  this  requirement  is  on or  after  January  1,  2023,  and on or  before December  30,  2023,  then  that  deadline is  extended  to December  31, 2023;
  • The placed-in-service deadline.   If  the  original  deadline for  a low-income  building to be placed in  service  was  the close of  calendar  year  2020,  the new  deadline is  the close of  calendar  year  2022  (that  is,  December  31,  2022). If  the original  placed-in-service deadline was  the  close of  calendar  year  2021 and the  original  deadline for  the 10-percent  test  in  § 42(h)(1)(E)(ii)  was  before  April  1, 2020,  the  new  placed-in-service deadline  is  the close  of  calendar  year  2022  (that is,  December  31,  2022). If  the original  placed-in-service deadline is  the  close of  calendar  year  2021 and the  original  deadline for  the 10-percent  test  in  § 42(h)(1)(E)(ii)  was  on or  after April  1,  2020,  and  on  or  before  December  31,  2020,  then the new  placed-in service deadline  is  the  close of  calendar  year  2023  (that  is,  December  31,  2023). If  the original  placed-in-service deadline is  the  close of  calendar  year  2022 (and thus  the  original  deadline for  the  10-percent  test  was  in  2021),  then  the new placed-in-service  deadline is  the close  of  calendar  year  2023  (that is, December  31,  2023);
  • The reasonable restoration period in the event of casualty loss. For  purposes  of  §  42(j)(4)(E)  both in  the case  of  a casualty  loss  not  due to a  pre-COVID-19-pandemic  Major  Disaster  and in situations  governed by  section  8.02 of  Rev. Proc.  2014-49 in  the  case of  a casualty  loss  due  to  a pre-COVID-19-pandemic  Major Disaster,  if  a low-income  building’s  qualified  basis  is  reduced  by  reason  of  the casualty loss  and the reasonable period to  restore  the  loss  by  reconstruction  or  replacement  that was  originally  set  by  the HCA  (original  Reasonable  Restoration  Period)  ends  on or  after April  1,  2020,  then  the  last  day  of  the  Reasonable Restoration Period is  postponed  by eighteen  months  but  not  beyond December  31,  2022.   Notwithstanding the  preceding sentence,  the Agency  may  require  a shorter  extension,  or  no  extension at  all; and
  • Agency correction periods. if  a correction  period that  was  set  by  the Agency  ended on or  after  April  1,  2020,  and  before December  31,  2021,  then the  end of  the correction period  (including as  already  extended,  if  applicable)  is  extended  by  a year,  but  not beyond December  31,  2022.   If  the correction  period  originally  set  by  the Agency  ends during  2022,  the  end  of  the  period is  extended to December  31,  2022.   Notwithstanding the  preceding sentences,  the Agency  may  require a shorter  extension,  or  no  extension at  all.

The notice also provides an extension to satisfy occupancy obligations. If the close of the first year of the credit period with respect to a  building was on or after  April  1,  2020,  and on or before December  31,  2022,  then,  for purposes of §  42(f)(3)(A)(ii),  the qualified basis for the building for the first year of the credit period is calculated by taking into account any increase in the number of low-income units by the close of the 6-month period following the close of that first year. This provides an additional six months after the first year of the credit period to qualify units in order to avoid the 2/3-unit rule.

Concerning compliance, the notice will provide an extension to the requirement for a 30-day notice for HFA reviews of tenant files through the end of 2022 and will permit HFAs to defer physical inspections through June 30, 2022, with the option to extend the deferral to the end of 2022 in consultation with local public health experts. An  Agency was not required to review tenant files in the period beginning on  April  1,  2020, and ending on  December  31,  2021.   The  Agency must have resumed tenant-file review as due under  §  1.42-5 as of  January  1,  2022.    For purposes of  §  1.42-5(c)(2)(iii)(C)(3),  between April  1,  2020,  and the end of 2022,  when the  Agency gives an Owner reasonable notice that it will review low-income certifications of not-yet-identified low-income units,  it may treat the reasonable notice as being up to 30  days.   Beginning on January  1,  2023,  for this purpose reasonable notice again is generally no more than 15 days. 

An  Agency is not required to conduct compliance monitoring physical inspections in the period beginning on  April  1,  2020, and ending on June  30,  2022.   Because of the high  State-to-State and intra-State variability of  COVID-19 transmission,  an Agency,  in consultation with public health experts,  may extend the waiver in the preceding sentence if the level of transmission makes such an extension appropriate.   Depending on varying rates of transmission,  the extension may be Statewide,  may be limited to specific locales,  or maybe on a project-by-project basis.   No such extension may go beyond December  31,  2022.   The  Agency must resume compliance-monitoring reviews as due under  §  1.42-5  once the waiver expires. For purposes of  §  1.42-5(c)(2)(iii)(C)(3),  between April  1,  2020,  and the end of 2022 only,  when the Agency gives an Owner reasonable notice that it will physically inspect not-yet-identified low-income units,  it may treat the reasonable notice as being up to 30  days.   Beginning on  January  1,  2023,  for this purpose reasonable notice again is generally no more than  15 days.   

The closure of amenities or common areas in LIHTC properties due to COVID-19 will not result in a reduction of eligible basis and essential workers may be provided emergency housing in LIHTC properties. This will apply until December 31, 2022.   During the above period,  an HFA may deny any application of the above waiver or,  based on public health criteria,  may limit the waiver to partial closure,  or to limited or conditional access of an amenity or common area.   (For  example,  the  Agency  may  apply  the  waiver  to  access  an  amenity  or common area that  is  limited  to  persons  wearing  masks  or  to  persons fully vaccinated against  COVID-19.)

The following relief is provided for tax-exempt bond properties:

THE  12-MONTH TRANSITION  PERIOD  TO  MEET  SET-ASIDES FOR QUALIFIED  RESIDENTIAL  RENTAL  PROJECTS.   For purposes of section 5.02  of  Rev.  Proc.  2004-39,  if the last day of a 12-month transition period for a qualified residential rental project originally was on or after  April  1, 2020,  and before December  31,  2022,  then that last day is postponed to December  31, 2022. B

THE § 147(d)  2-YEAR  REHABILITATION  EXPENDITURE  PERIOD  FOR BONDS USED  TO  PROVIDE QUALIFIED  RESIDENTIAL  RENTAL  PROJECTS.  If a bond is used to provide a qualified residential rental project and if the last day of the  §  147(d)  2-year  rehabilitation expenditure period for the bond originally was on or after  April  1,  2020,  and before  December  31,  2023,  then that last day is postponed to the earlier of eighteen months from the original due date or  December  31,  2023.

Owners of LIHTC or tax-exempt bond properties that may be affected by this relief should obtain a copy of the IRS Notice when published on January 14.

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