N.Y. Comp. Codes R. & Regs. tit. 21 § 2188.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 2188.2 - Definitions

(a)"42(m) Letter" - Letter prepared by the issuer of the tax exempt obligations financing a project indicating that a project eligible for Private Activity Bond Credits generally complies with the provisions of this QAP and estimating the amount of LIHTC which will be allocated if the project is completed as planned.

(b)"Adjusted project cost" - The proportional amount of approved project costs attributable to the LIHTC regulated portion of the project.

(c)"Agency" or "HFA" - The New York State Housing Finance Agency, a public benefit corporation organized by and under Article 3 of the Private Housing Finance Law.

(d)"Ceiling Credits," "State Credit Ceiling LIHTCs," or "9% Credits" - LIHTC which count against the State Credit Ceiling. Under certain circumstances, such as an acquisition of a building in an acquisition and rehabilitation project, the project may receive "4%" LIHTCs which are subject to the State's Credit Ceiling. These credits are often also called "cap credits."

(e) "Commissioner/CEO" - shall mean the Commissioner of the Division of Housing and Community Renewal of the State of New York who is also the CEO of the New York State Housing Finance Agency.

(f)"Code" - Internal Revenue Code of 1986, as amended, and the Treasury Regulations, Revenue Rulings and Procedures and other publications of the IRS with binding authority applicable thereunder.

(g)"Commitment Letter" - Letter committing the Agency to finance a project assuming all conditions in the letter are met.

(h) "Cost Certification" - An audited report by an independent third party Certified Public Accountant, with content and opinion in form and substance satisfactory to HFA, verifying all project costs, the tax credit eligible costs incurred and any other cost data required by HFA for a project as support for the amount of the project's allocation of LIHTCs or as support for the project's eligibility for an IRS Form 8609 allocation.

(i)"Credit Allocation Authority" - Authority granted by DHCR to the Agency to allocate State Credit Ceiling LIHTCs.

(j)"DHCR" or "Division" - New York State Division of Housing and Community Renewal

(k) "Due Diligence Reports" - Appraisals, Market Studies, Environmental Reports and, studies required for rehabilitation or preservation projects, Physical Condition Assessments or other engineering reports which are sought by the Agency in connection with the financing and LIHTC allocation for the project.

(l)"Feasibility Review" - A review by the Agency to determine that the proposed project can be financed, completed and operated in compliance with LIHTC regulatory requirements based upon, but not limited to, the reasonableness of development cost, the plan of financing, constructability of the proposed project, rents to be charged, the income and expenses of the project and the market for the units.

(m) "Housing Opportunity Projects" - shall mean family projects in an area of opportunity linked to schools that meet or exceed minimum performance standards and that meet or exceed other measures of opportunity, including, but not limited to, the rate of poverty, as may be set forth in a request for proposals.

(n) "Identity of Interest" - shall mean any financial, familial or business ownership relationship between any general partner and any participant in the project's development. This includes, but is not limited to, existence of a reimbursement arrangement or exchange of funds; common financial interests; common officers, directors or stockholders; or family relationships between officers, directors, or stockholders.

(o)"IRS" or "Service" - Internal Revenue Service.

(p) "LIHTC" - Low Income Housing Tax Credit, as the meaning of such term is defined in and by Section 42 and other applicable provisions of the Code.

(q) "LIHTC Underwriting" - A review to determine that the proposed or completed project conforms to the requirements of IRC Section 42 and most specifically §42(m)(2) of the Code.

(r)"Low Income Units" - Units subject to rent restrictions pursuant to IRC §42(g).

(s) "Market Rate Units" - Units not subject to rent restrictions pursuant to IRC §42(g).

(t) "Members" - The New York State Housing Finance Agency's membership consisting of the Commissioner of the Division of Housing and Community Renewal, the Director of the Budget, the Commissioner of Taxation and Finance and four Members appointed by the Governor with the advice and consent of the Senate.

(u) "Members' Approval" - The Members' authorization of a financing structure and/or an allocation of LIHTC. This authorization gives the Agency's President and Chief Executive Officer, or their designee, the authority to finance a project and/or make an allocation of LIHTC.

(v) "Other Issuer" - An issuer, other than the Agency, of tax exempt bonds subject to the Private Activity Bond Volume Cap established pursuant to Section 142 of the Code.

(w) "Owner's Certification" - Sworn statement by the owner of a project, submitted to the Agency at least annually during the compliance period, certifying that, for the preceding 12-month period, various actions were taken, or not taken, as required by the Code and this QAP.

(x) "Per Unit Eligible Basis Limit" - $575,000 per unit. This limit is applicable beginning in calendar year 2020 and may be adjusted thereafter, no more than annually, using such indexes of inflation and deflation of construction costs as the Agency in its discretion may determine to apply. The limit in effect on the date of a project's construction closing will apply to that project. The currently effective limit will be published on the Agency's website.

(y) "Private Activity Bond Volume Cap" - A limit on the volume of tax exempt bonds established pursuant to Section 142 of the Code.

(z)"Plan" or "QAP" - Low Income Housing Tax Credit Qualified Allocation Plan.

(aa) "Private Activity Bond Credit" or "4% Credit" - LIHTCs which do not count against the State Credit Ceiling because:

(a) 50% or more of the aggregate basis of any building, and the land upon which the building is located, receiving LIHTC is financed by tax exempt bonds subject to the Private Activity Bond Volume Cap contained in Section 142 of the Code; or

(b) the LIHTCs are solely based on the portion of the eligible basis of the project receiving the LIHTC which is actually financed by tax exempt bonds subject to the Private Activity Bond Volume Cap established pursuant to Section 142 of the Code.

(bb) "State" - State of New York.

(cc) "Scoring Criteria" - Certain criteria for the evaluation of LIHTC allocation set forth in this QAP in § 2188.6.

(dd) "Section 42" - Section of the Code authorizing and governing credits against federal income taxes to promote the creation of affordable rental housing.

(ee) "State Credit Ceiling" - New York State's ceiling on the amount of LIHTC which may be issued in a given calendar year. This ceiling consists of "per capita" credits, national pool credits and returned credits as provided in IRC Section 42.

(ff) "State Designated Building" - a building, receiving LIHTC that is determined to advance the State's affordable housing goals and policies which may include, but are not limited to, housing opportunity projects, and other projects, which may be designated in a request for proposals and that are designated by the Agency as requiring an increase in credits up to an amount determined by the Agency to ensure financial feasibility as if the building were located in a difficult development area. Buildings receiving tax exempt bond financing are not eligible to be a State Designated Building.

(gg) "Term Sheets" - Descriptions, published from time to time, of the terms and conditions upon which HFA is willing to finance projects under various programs, usually determined by credit enhancement source, and/or type of project or borrower.

(hh) "Threshold Eligibility Requirements" - Certain essential requirements for LIHTC allocation set forth below in this QAP at § 2188.4.

(ii) "Visitability Standards" - All LIHTC visitable units shall include the provision of at least one means of entry on an accessible route (no-step entrance), a 36 inch or greater clear circulation path through the first floor of the unit, including all interior doorways, and at least a half-bath on the first floor of the unit with a 30 inch by 48 inch clear floor area to accommodate a person in a wheelchair and allow that person to close the door. Notwithstanding the foregoing, a dwelling unit that contains all necessary components and clearances required by the applicable building code for an accessible dwelling unit on an accessible route shall be considered to meet the visitability circulation requirement.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 2188.2

Amended New York State Register May 26, 2021/Volume XLIII, Issue 21, eff. 5/26/2021