News

GAO Issues Second Report on the LIHTC Program, May 2016

The United States Government Accountability Office (GAO) recently issued a report to the Senate Judiciary Committee titled "Low-Income Housing Tax Credit - Some Agency Practices Raise Concerns and IRS Could Improve Noncompliance Reporting and Data Collection." This is the second in a series of three reports that the GAO will release on the administration of the LIHTC program.   The GAO was asked to review allocating agencies oversight of the LIHTC program. This report reviews how allocating agencies administer the LIHTC program and identifies any oversight issues. GAO reviewed regulations and guidance for allocating agencies; analyzed 58 allocation plans (from 50 states, the District of Columbia, U.S. territories, New York City, and Chicago); performed site visits and file reviews at nine selected allocating agencies; and interviewed IRS and HUD officials. The nine agencies were California, Chicago, Illinois, Massachusetts, Michigan, Nevada, Rhode Island, Virginia, and Washington, DC.   As a result of their findings, the GAO recommends that the IRS clarify when agencies should report noncompliance and participate in the Rental Policy Working Group to assess the use of HUD s database to strengthen IRS oversight. The IRS agrees that it should improve its noncompliance data, but also stated that it has to consider resource constraints. HUD supports using its expertise and experience administering housing programs to improve the LIHTC program.   Major findings from the study include the following: More than 50% of the qualified allocation plans (QAPs) that GAO analyzed did not explicitly mention all selection criteria and preferences that Section 42 of the Internal Revenue Code requires. Allocating agencies notified local governments about proposed projects as required, but some also require letters of support from local governments. HUD has raised fair housing concerns about this practice, saying that local support requirements (such as letters) could have a discriminatory impact on the location of affordable housing. Allocating agencies can increase (boost) the eligible basis used to determine allocation amounts for certain buildings at their discretion. However, they are not required to document any justification for the increases. The criteria used to award boosts varied, with some allocating agencies permitting boosts for specific types of projects and one allowing boosts for all projects in the state.   In the first report on the LIHTC program (July 2015), the GAO found that IRS oversight of allocating agencies was minimal and recommended joint administration with HUD to more efficiently address oversight challenges. The current report continues to state that IRS oversight is minimal, particularly in the review of QAPs and practices relative to the awarding of basis boosts.   Issues relating to IRS management of noncompliance reports from allocating agencies include: The IRS provides discretion to allocating agencies for reporting noncompliance data, but does not provide feedback to the agencies about data submissions. Consequently, allocating agencies have been inconsistent in their reporting of noncompliance to the IRS. The IRS does not use the information it receives from the allocating agencies to identify trends in noncompliance. The report states that the IRS has recorded only about 2 percent of the noncompliance information received since 2009 in its database. The IRS does not use key information when determining whether to initiate an audit, potentially missing opportunities to initiate LIHTC-related audits.   Findings of Interest in the Report   A number of findings should be of interest to program participants (developers, management companies, investor/syndicators, and HFAs).   54 of the 58 allocating agencies reviewed cited the use of points or thresholds (minimum requirements) to weight, evaluate, and score applications against certain criteria and factors. Over 1/3 of the QAPs reviewed cited letters of support from local governments as a consideration in the awarding of credits. Major scoring criteria in QAPs include the following: Qualifications of development team: 92% Cost-effectiveness or cost-containment: 72% Energy Efficiency: 70% Prior compliance with the LIHTC program: 70% Leveraging other federal or state programs: 51% Project readiness: 50% Letters of support from local government: 38% 12 agencies actually require local government approval prior to an allocation of credits. Monetary contributions from local government: 31% Other local government contributions: 20% While all agencies must allocate at least 10 percent of credits to qualified nonprofit organizations, some reserve more than 10 percent. Virginia and Chicago reserve 15% and 30% respectively. Extended Use Agreements must have a minimum term of 30-years, but some agencies require much longer periods. California has a minimum extended use period of 55 years, and other agencies such as Virginia, Massachusetts, and Nevada award extra points for longer extended use. Michigan has restricted owners from using the Qualified Contract process at the end of the compliance period by limiting the ability of owners to remove affordability restrictions. From calendar year 2009 to April 2016, the IRS has received 214,000 Form 8823s - an average on nearly 27, 000 forms per year). States vary widely in what they report to the IRS: California, Virginia, and Rhode Island will not send a Form 8823 for minor violations of the Uniform Physical Conditions Standards (UPCS) - such as peeling paint or missing light bulbs - if the violations were corrected during the inspection. Michigan, Nevada, and Washington, DC send the form to the IRS for any instance of reportable noncompliance, whether or not the issue was resolved during the inspection. The range of reported violations between the agencies in 2013 was stark: California reviewed 785 properties and sent 59 8823s; Chicago reviewed 125 properties and sent one 8823; Illinois reviewed 232 properties and sent one 8823; Massachusetts reviewed 212 properties and sent 96 8823s; Michigan reviewed 929 properties and sent 1,728 8823s; Nevada reviewed 196 properties and sent 511 8823s; Rhode Island reviewed 125 properties and sent one 8823; Virginia reviewed 183 properties and sent 368 8823s; and Washington, DC reviewed 10 properties and sent 28 8823s. A number of agencies fail to meet the requirement to submit 8823s to the IRS within 45-days after the deadline for correction. Virginia, Illinois, Michigan, Massachusetts, Rhode Island, and Nevada all meet the deadline, but California submits the forms monthly, Chicago once a year, and Washington, DC biannually (the GAO report did not define whether in this case biannually means twice a year or once every two years (both uses are common). I assume twice a year since the alternative would be ridiculous. The IRS informed the GAO that the Service is not communicating with allocating agencies regarding form submission practices or the application of the IRS Guide (this comes as no surprise to the agencies). As of April 2016, the IRS database includes information from only 4,200 of the nearly 214,000 8823s received since 2009 (less than 2%). For this reason, the IRS is unable to provide information on the most common types of noncompliance (although we know from the allocating agencies that physical deficiencies are reported much more often than any other type of noncompliance). The IRS also has no method to determine if issues reported as uncorrected have been resolved or if properties have recurring noncompliance issues.   GAO Recommendations for Executive Action   The GAO is making three recommendations based on this report: The IRS should collaborate with the allocating agencies to clarify when allocating agencies should report such information on the Form 8823. The IRS and Treasury Department should coordinate the drafting of such guidance to ensure that any new guidance is consistent with Treasury regulations; The IRS should participate in the physical inspection alignment initiative of the Rental Policy Working Group; and The IRS should evaluate how the agency could use HUD s REAC databases, including how the information might be used to reassess reporting categories on the Form 8823 and to reassess which categories of noncompliance information have to be reviewed for audit potential.   It is unlikely that any action will be taken as a result of this report in the short term - certainly not until the third of the expected reports is released, which will probably be in 2017. At that point, we will have a new President and a new Congress and tax reform will be under consideration. It is certain that the GAO findings will be elements of the discussion when deciding how to proceed with the LIHTC program in the future.      

HUD Demonstration Program on Housing Choice Voucher Physical Inspections

On April 27, 2016, HUD published in the Federal Register a "Notice of Demonstration to Test Proposed New Method of Assessing the Physical Conditions of Voucher-Assisted Housing."   Through this Notice, HUD is seeking comments on a demonstration designed to test a new method of performing inspections on apartment units occupied by residents with Section 8 Vouchers, now known as Housing Choice Vouchers (HCV). Comments are due to HUD by July 5, 2016.   Background In the 1970's HUD established housing quality standards (HQS). PHAs use these standards to determine if housing meets the requirements necessary for the safety and habitability of occupants assisted under the Section 8 voucher program.   The HUD Office of Inspector General (OIG) has released several audit reports and evaluations that have identified weaknesses in the HCV inspection program. As a result of these reports, the Senate 2014 appropriations bill directed HUD to "...move to a consistent inspection standard across housing assistance programs, as well as for oversight of Section 8 units." A subsequent review by HUD showed that the current HQS protocol lacks objective, well-defined deficiency descriptions, is unable to capture granular unit conditions, and relies on a paper inspection form. There is also an absence of modern health standards such as carbon monoxide detectors and sprinkler systems, and an absence of a universal list of life threatening or emergency deficiencies.   HUD has not accelerated the search for a replacement to the HQS, leading to the eventual development of the Uniform Physical Condition Standards - Voucher (UPCS-V). In the Consolidated Appropriations Act of 2016, Congress directed HUD to implement a single inspection protocol for public housing and voucher units. This demonstration begins the process for implementing a single inspection protocol by soliciting Public Housing Agencies (PHAs) to voluntarily move to the single inspection protocol, conduct field testing, and participate in oversight and monitoring activities relating to the new standard.   The Demonstration   UPCS-V incorporates housing health and safety constructs, concepts from the UPCS, and HQS.   Under this demonstration, HUD will test, for up to three years, with up to 250 PHAs, the UPCS-V model as a new method of assessing the physical condition of voucher-assisted housing.   The new inspection model differs from the HQS inspection model in that it incorporates standards based on UPCS and uses a classification system that collects a more detailed level of data resulting in a better representation of the condition of the unit.   To participate in this Demonstration, a PHA must administer a HCV program. PHAs participating in any aspect of the Demonstration will be required to participate in focus groups, conference calls, and training sessions on policies and procedures. HUD will train each participating PHAs inspectors, administrators, and quality control staff on the new inspection protocol, including how to use the inspection software.   HUD is requesting that PHAs interested in participating in the Demonstration notify HUD no later than July 5, 2016, by emailing HUD at UPCSV@hud.gov, and providing the PHA name, address, contact name, contact phone number, and email address.   Owners and managers of multifamily properties that accept vouchers should stay abreast of progress relative to this Demonstration since it will impact the inspection of units occupied by voucher holders.

Updated REAC Guidance - May 23, 2016

HUD has released a document titled "UPCS Guidance & Protocol Clarification." This guidance was effective on May 23, 2016, and changes some of the prior guidance inspectors followed during REAC inspections. Primary changes/clarifications are as follows: HUD has clarified that vegetation touching a fence but not causing damage is not a violation. However, since changes to protocol issues published in the Federal Register need to be revised through regulatory changes, this guidance applies only to fences in land areas that are not in active use. Owners and managers should still consider vegetation contact with fences in primary residential areas as being a level 2 violation. If the exterior cover plate for a clothes dryer is missing or damaged, it will be considered a penetration and reported as a hole in the building s exterior and will be a level 2 finding. When an inspector chooses to test a zip tie used to secure electrical boxes, if the tie breaks and wires are exposed, it is a defect; if no wires are exposed it is not a defect. When testing Self-Latching doors, inspectors are to make only two attempts to confirm that the door closes - no more and no less. If the door does not close on the first attempt, it should be opened at a different angle for the second attempt. The resident/owner/manager may not open a window to assist the door closing. The door needs to operate whether or not a window is open. A missing strike plate is a deficiency even if a door operates. Caulking on a breaker or fuse panel is now considered a Health & Safety hazard. No foreign material - including caulk - may be used to repair an electrical panel. When there is an opening in an electrical panel, repairs must be made using materials specifically designed for such repairs. Overgrown weeds and grass in an area that is not in use is not a defect. Stains on exterior walls that are painted are a defect; stains on non-painted exterior walls (vinyl, brick, aluminum, etc.) are not a defect. Handicap chair lifts or stair lifts are considered elevators and must operate in the manner intended by the manufacturer. Property staff may demonstrate operability. If a showerhead in a unit leaks when turned on (even if it does not leak when turned off) it is a defect. Level 1 if contained and level 3 if not contained.

HUD Announces Housing Trust Fund Awards - May 5, 2016

On May 5, 2016, HUD published a notice in the Federal Register announcing the fiscal year 2016 Funding Awards for the Housing Trust Fund HTF). HUD had originally estimated that $120 million would be allocated in 2016, but this notice awards $173,591,160. In 2008, Congress authorized the HTF with the stated purpose of (1) Increasing and preserving the supply of rental housing for extremely low-income families with incomes between 0 and 30% of area median income and very low-income families with incomes between 30 and 50% of area median income, including homeless families, and (2) increasing homeownership for extremely low-income and very low-income families. Fannie Mae and Freddie Mac fund the HTF with an affordable housing set-aside. The awards range from a low of $12,321 for American Samoa to a high of $10,128,143 for California. Most states will receive $3 million. Affordable housing developers should contact their State Housing Finance Agency for information on how the fund will be administered.

Housing Discrimination Based on Religion

Discrimination Based on Religion   In this third installment in my series on the Fair Housing Act protected categories, I want to review some of the issues relevant to discrimination based on religion.   Religion is one of the characteristics that were originally protected in the 1968 Act. The Act does include an exemption for religious based organizations. However, unlike Title VII employment protections, the Fair Housing Act (FHA) does not require that housing providers "reasonably accommodate" religious beliefs, observances, or practices. The percentage of fair housing complaints relating to religion is fairly small, never having exceeded 5% on an annual basis. In fact, a large percentage of the fair housing complaints based on religion have involved disputes in the New York City area between Jewish persons and other groups. A number of these (and other) cases involved challenges to municipal land-use restrictions that allegedly discriminated against the plaintiff s religion. More traditional types of fair housing cases have been brought against owners and operators of multifamily properties. In these cases, owners and property managers have been accused of religious discrimination against housing applicants or residents. An example of such as case is Snyder v. Bazargani, 2007; in this case, a jury upheld a verdict against landlords who first inquired about the plaintiffs religion and then refused to rent them a unit because they were Jewish. Another case out of Newport News, Va. was Lotz Realty Company, Inc. v. U.S. Department of Housing & Urban Development (1983). In this case, the Anti-Defamation League prevailed in its challenge to a realtor s use of Christian symbols and slogans in its housing ads. With regard to the use of religious words, symbols, and slogans in housing ads, HUD has opined that such ads may violate the FHA if it conveys a discriminatory preference or limitation by using such words as "Protestant," "Christian," or "Jew." For example, an ad stating "Christian home for rent," could be deemed discriminatory. Harassment against religious minorities has also been alleged in some cases, such as Halprin v. Prairie Single Family Homes of Dearborn Park Association (2004). The court upheld a claim by condominium owners against the Condo Association and its board members for harassment of the plaintiff couple because the husband was Jewish. This case also upheld a finding that neighbors had discriminated against the couple.   Exemptions from the Religious Discrimination Provisions of the FHA   The primary exemption in the Act relative to religious discrimination applies to religious organizations. Such organizations may discriminate in favor of members of the religion in the operation of "noncommercial" dwellings (i.e., operated without a profit motive) as long as membership in the religion is not based on race, color, or national origin. However, Congress has noted that the Civil Rights Act of 1866, which prohibits any discrimination based on race, covers discrimination against Jews.   As is evidenced by current legislative efforts in a number of states, religion is often defended with regard to discrimination against certain groups. There have been a series of cases in which landlords have argued that there religious beliefs require them to discriminate against unmarried couples or other classes of tenants who are protected by state and local antidiscrimination laws. In 1994, for example, in Attorney General v. Desilets, the Massachusetts Supreme Judicial Court held that a provision of the state constitution guaranteeing freedom of religion protected landlords who had refused, in violation of the state s antidiscrimination law, to rent to an unmarried couple. In this case, the landlords held what the Court deemed to be a sincere belief that their rental practices had to conform to their religious beliefs, which included not facilitating sinful conduct such as pre-marital sex. Under these circumstances, the court held, the landlords should prevail unless the state could prove that it had a "compelling" interest in eliminating marital status discrimination. This would be difficult since it is generally accepted that marital status discrimination is not as intense a concern as is discrimination based on certain other classifications, such as race, color, religion, sex, and national origin. Based on this reasoning, a landlord refusing to rent to a married couple of the same sex would have a more difficult time prevailing, since the discrimination would be at least partially based on sex (assuming the landlord would rent to heterosexual married couples).   The bottom line for landlords is that the intent of the Fair Housing Act was (and is) to ensure that all persons have access to safe, decent, and sanitary housing where they can exercise their right to worship or not to worship as they choose. Owners who choose to operate housing in the commercial marketplace should not use any religious test (either their own or an applicants) as a condition for housing.

HUD Publishes Section 8 Annual Adjustment Factors (AAF)

On April 3, 2016, HUD published in the Federal Register the 2016 Section 8 Housing Assistance Payments Program Annual Adjustment Factors (AAF). The factors are based on a formula using residential rent and utility cost changes from the most recent annual Bureau of Labor Statistics Consumer Price Index (CPI) survey. These factors are applied at the anniversary of Housing Assistance Payments (HAP) Contracts for which rents are to be adjusted using the AAF. Tables showing AAFs will be available electronically from HUD at huduser.gov/portal/datasets/aaf.html.

Revision of Tenant Participation Requirements, HUD Notice H 2016-05

Revision of Tenant Participation Requirements, HUD Notice H 2016-05   On March 31, 2016, HUD published Notice H 2016-05, Revision of Tenant Participation Requirements.   This notice restates requirements originally issued in Notice H 2014-12 and revises penalties for non-compliance. This revised notice expands the types of properties that may be assessed civil money penalties to include non-insured projects that have a project-based Section 8 contract that has been renewed under the Multifamily Assisted Housing Reform and Affordability Act of 1997 (MAHRA).   Applicability   This notice applies to any mortgagor or owner of any multifamily housing project that meets any of the following: Projects subject to a HUD-insured or Secretary held mortgage under the National Housing Act; Section 236 projects; Section 221(d)(3) and (d)(5) Below Market Interest Rate (BMIR) insured projects; The Rent Supplement Program; The Section 8 Loan Management Set-Aside (LMSA) program; State or local housing finance agency projects that receive assistance under Section 236 or Rent Supplement, but does not have a HUD-insured mortgage; Properties with project-based Section 8 (does not include Project-based vouchers); Projects with enhanced vouchers under the Low-Income Housing Preservation and Resident Homeownership Act of 1990, the provisions of the Emergency Low-Income Housing Preservation Act of 1987, or the Multifamily Assisted Housing Reform and Affordability Act of 1997; Section 202 Direct Loan Program or the Section 202 Supportive Housing for the Elderly Program; and Section 811 Supportive Housing for Persons with Disabilities Program.   Rights of Tenants & Tenant Organizations   The notice makes it clear that tenants have the right to establish and operate a tenant organization for the purpose of addressing issues related to their living environment as well as activities related to housing and community development. A tenant organization is considered legitimate if it meets regularly, operates democratically, is representative of all residents in the development, and is completely independent of owners, management, and their representatives. The organization does not have to have a specific structure, written by-laws, elections, or resident petitions.   Owners and/or management agents are required to provide the head of household with a copy of the "Residents Rights & Responsibilities" brochure at move-in and annually at recertification. This brochure addresses tenant rights to organize.   Protected Activities   Owners must permit tenants and tenant organizations to undertake the following activities:   Distribution of leaflets in lobby and common areas, under tenants doors, and posting of information on bulletin boards; Initiation of contact with tenants, conducting door-to-door surveys to determine interest in establishing a tenant organization, and to offer information about the tenant organization; Offering assistance for tenants to participate in tenant organization activities; and Convening tenant organization meetings on-site in a manner that is fully independent of management representatives. Management representatives may not attend such meetings unless invited by the tenant organization.   Tenants also have the right to be notified of and to formulate responses to: Owner s requests for budget-based rent adjustments; Partial payment of claims; Conversion from project paid utilities to tenant-paid utilities; A reduction in tenant utility allowances; Conversion of units to non-residential use, cooperative housing, or condominiums; Major capital additions; and Loan prepayments.   Meeting Space   Owners and management agents must reasonably make available the use of any community room or other available space appropriate for meetings when requested by tenants or the tenant organization for activities related to the operation or establishment of the tenant organization, or to address issues relating to their living environment collectively. All programs or activities must be held in accessible locations unless the owner can demonstrate that doing so would result in a fundamental alteration of the program or an undue financial and administrative burden (i.e., would not be a reasonable accommodation).   Unless the project has low-income housing tax credits, an owner may charge a reasonable fee, approved by HUD and placed in the project account.   Tenant Organizers   A "tenant organizer" is a tenant or non-tenant who assists other tenants in establishing and operating a tenant organization, and who is not an employee or representative of current or prospective owners, managers, or their agents. Owners and management agents must allow tenant organizers to assist tenants in establishing and operating tenant organizations.   I recommend that a non-tenant "tenant organizer" be accompanied by a tenant while on the property. However, in order to require this, the owner must have a written policy against canvassing, and the policy must be consistently enforced. If the owner does not have a policy prohibiting canvassing, non-tenant organizers must be allowed to access the property without being accompanied by a tenant.   Impediments to Residents or Resident Associations Attempting to Exercise Their Rights   Owners may take no action that will impede the ability of tenants to establish a tenant organization or interfere with the activities of such organizations once they are organized. Examples of prohibited impediments include the following: Unreasonable denial of accessible meeting space; Repeatedly sending management representatives to resident meetings when management has requested that management not attend; Evicting, threatening to evict, withholding entitlements, or otherwise penalizing residents for organizing or asserting their rights; Attempting to form a competing resident organization under control of the management company or owner; and Running for office or otherwise serving as a member of the resident organization.   HUD Enforcement Options   A violation of the requirements outlined in the notice by an owner or management agent may result in one or more of the following sanctions: Debarment; Suspension; Limited Denial of Participation - this type of action excludes a party from further participation in a certain HUD program area. The action may be limited to a certain geographic area, and normally expires in one year; Civil Money Penalties - fines may be imposed on owners, principals of owners, and management agents who knowingly and materially fail to comply with the provisions of this notice. The maximum civil penalty for each offense is currently $42,500.    

HUD Releases Final AFFH Assessment Tool

HUD Releases Final AFFH Assessment Tool   On March 23, 2016, HUD published a Notice in the Federal Register regarding the final Affirmatively Furthering Fair Housing Assessment tool. This tool is for Public Housing Agencies. HUD had already released assessment tools for use by local governments and States and Insular Areas. This Notice solicits public comment for a period of 60 days on the proposed tool. The comment due date is May 23, 2016.   On July 16, 2015, HUD published the Affirmatively Furthering Fair Housing (AFFH) final rule that provides HUD program participants with a new process for planning for fair housing outcomes in order to assist them in meeting their statutory obligation to affirmatively further fair housing. This process includes an assessment tool that program participants must use to evaluate fair housing choice and access to housing opportunities in their jurisdictions.   The Proposed PHA Assessment Tool   The purpose of the tool is to provide certain nationally uniform data to program participants that will be useful in completing an Affirmative Fair Housing Plan (AFH). All program participants must use the HUD-provided data when completing an AFH.   HUD is only able to provide data for those protected class groups for which nationally uniform data are available. For this reason, some questions in the PHA Assessment Tool focus on specific protected classes based on the availability of such data. For these questions, local data and knowledge may be more helpful than the HUD assisted data.   Local Data & Local Knowledge   In addition to the nationally uniform data provided by HUD, program participants are required to use local data and local knowledge to assist in their assessments. Such local information will be necessary when answering the questions in the assessment tool.   Structure of the Proposed PHA Assessment Tool   The proposed PHA Assessment Tool has three key objectives: (1) The assessment tool must ask questions that are sufficient to enable program participants to perform a meaningful assessment of key fair housing issues; (2) the assessment tool must clearly convey the analysis of fair housing issues and contributing factors that program participants must undertake; and (3) the tool must be designed so program participants can use it to prepare an AFH that HUD will accept without unnecessary burden.   The tool has six sections: Section I: Cover sheet and certification. This section also covers basic program information applicable to the program participant or participants; Section II: Executive Summary; Section III: Addresses the community participation process and directs the PHA to describe outreach activities to encourage community participation in the development and review of the AFH, to describe how successful its outreach efforts were in obtaining community participation related to the AFH, and to summarize all comments obtained in the community participation process; Section IV: Assessment of Past Goals and Actions - requires PHAs to reflect upon the progress of past goals and actions and the efforts undertaken to achieve fair housing goals; Section V: Fair Housing Analysis - this section is designed to assist PHAs in identifying the fair housing issues and contributing factors in their service area and region; and Section VI: Fair Housing Goals & Priorities - this section contains a summary table of the fair housing issues that the PHA has identified.   The PHA Assessment Tool may be used by PHAs, including Qualified PHAs that elect to submit either an individual AFH or a collaborative AFH involving a collaboration of more than one PHA.   PHAs should carefully review the content of the proposed tool and send comments to HUD by the deadline date noted above.