An Introduction to the Low-Income Housing January 15, 2021 Tax Credit Mark P. Keightley The low-income housing tax credit (LIHTC) program is the federal government'’s primary policy Specialist in Economics tool for encouraging the development and rehabilitation of affordable rental housing. The program awards developers federal tax credits to offset construction costs in exchange for agreeing to reserve a certain fraction of units that are rent-restricted and for lower-income households. The credits are claimed over a 10-year period. Developers need upfront financing to complete construction so they will usually sell their tax credits to outside investors (e.g., corporations, financial institutions) in exchange for equity financing. The equity reduces the financing developers would otherwise have to secure and allows tax credit properties to offer more affordable rents. The LIHTC is estimated to cost the government an average of approximately $9.8$10.9 billion annually.

The 2018 Consolidated Appropriations Act (P.L. 115-141) ) made two changes to the LIHTC program. First, the act increased the amount of credits available to states each year by 12.5% for years 2018 through 2021. This modification appeared to be in response to concerns over the effects of P.L. 115-97, , commonly referred to as the Tax Cuts and Jobs Act (TCJA). The changes made by TCJA did not directly alter the LIHTC program; however, the act reduced corporate taxes, which had the potential to reduce demand for LIHTCs. Second, the act modified the so-called "“income test,"” which determines the maximum maximum income an LIHTC tenant may have. Previously, each individual tenant was required to have an income below one of two threshold options (either 50% or 60% of area median gross income [AMI], depending on an election made by the property owner). With the modification, property owners may use a third income test option that allows them to average the income of tenants when determining whether the income restriction is satisfied, but no tenant may have an income in excess of 80% of AMI.

Most recently, to To assist certain areas of California that were affected by natural disasters in 2017 and 2018, the Further Consolidated Appropriations Act, 2020 (P.L. 116-94) ) increased California'’s 2020 LIHTC allocation by the lesser of the state'’s 2020 LIHTC allocations to buildings located in qualified 2017 and 2018 California disaster areas, or 50% of the state'’s combined 2017 and 2018 total LIHTC allocations.

There have also been a number of bills introduced in the 116^th Congress that would make Most recently, the COVID-Related Tax Relief Act of 2020, enacted as Subtitle B to Title II of Division N of the Consolidated Appropriations Act, 2021 (P.L. 116-260), sets a minimum credit (or “floor”) of 4% for the housing tax credit typically used for the rehabilitation of affordable housing. The JCT estimates this change will reduce federal revenues by $5.8 billion between FY2021 and FY2030. This change is permanent. There were also a number of bills introduced in the 116th Congress that would have made targeted changes to the LIHTC program. These proposals include included H.R. 4984, , H.R. 4865 and S. 767, , H.R. 4689, , H.R. 3479 and S. 1956, and H.R. 3478. . Broader changes to the program have beenwere proposed by the Affordable Housing Credit Improvement Act of 2019 (H.R. 3077/S. 1703).

H.R. 3077/S. 1703). Congressional Research Service link to page 4 link to page 4 link to page 5 link to page 6 link to page 7 link to page 7 link to page 7 link to page 8 link to page 9 link to page 10 An Introduction to the Low-Income Housing Tax Credit Contents Overview ....................................................................................................................... 1 Types of Credits.............................................................................................................. 1 Minimum Credit Rates ............................................................................................... 2 An Example ................................................................................................................... 3 The Allocation Process .................................................................................................... 4 Federal Al ocation to States ......................................................................................... 4 State Allocation to Developers ..................................................................................... 4 Developers and Investors ............................................................................................ 5 Recent Legislative Developments ...................................................................................... 6 Contacts Author Information ......................................................................................................... 7 Congressional Research Service An Introduction to the Low-Income Housing Tax Credit Overview The low-income housing tax credit (LIHTC) program, which was created by the Tax Reform Act of 1986 (P.L. 99-514), is the federal government'’s primary policy tool for the development of affordable rental housing. LIHTCs are awarded to developers to offset the cost of constructing rental housing in exchange for agreeing to reserve a fraction of rent-restricted units for lower-income households. Though a federal tax incentive, the program is primarily administered by state housing finance agencies (HFAs) that award tax credits to developers. Developers may claim the tax credits in equal amounts over 10 years once a property is "“placed in service,"” which means it is completed and available to be rented. Due to the need for upfront financing to complete construction, developers typically sell typical y sel the 10-year stream of tax credits to outside investors (e.g., corporations, financial institutions) in exchange for equity financing. The equity that is raised reduces the amount of debt and other funding that would otherwise be required. With lower financing costs, it becomes financiallyfinancial y feasible for tax credit properties to charge lower rents, and thus, potentiallypotential y expand the supply of affordable rental housing. The LIHTC program is estimated to cost the government an average of $9.8 billion annually.¹

10.9 bil ion annual y.1 Types of Credits

There are two types of LIHTCs available to developers. The so-calledcal ed 9% credit is generally general y reserved for new construction and is intended to deliver up to a 70% subsidy. The so-calledcal ed 4% credit is typicallytypical y used for rehabilitation projects utilizing at least 50% in federallyfederal y tax-exempt bond financing and is designed to deliver up to a 30% subsidy. This report will wil also refer to the 4% credit as the "“rehabilitation tax credit"” and the 9% credit as the "“new construction tax credit" ” to facilitate the discussion.²2 The 30% and 70% subsidy levels are computed as the present value of the 10-year stream of tax credits divided by the development'’s qualified basis (roughly the cost of construction excluding land).³ It is the 3 The subsidy levels (30% or 70%) are explicitly specified in the Internal Revenue Code (IRC).4 1 Computed as the average estimated tax expenditure associat ed with the program between FY2020 and FY2024. T his figure does not include revenue loss associated with instituting a minimum credit of 4% for the housing tax credit typically used for the rehabilitation of affordable housing as part of the COVID-Related T ax Relief Act of 2020, enacted as Subtitle B to T itle II of Division N of the Consolidated Appropriations Act, 2021 (P.L. 116-260). T his change is estimated to reduce federal revenues by $5.8 billion between FY2021 and FY2030. U.S. Congress, Joint Committee on T axation, Estim ates of Federal Tax Expenditures for Fiscal Years 2020-2024, committee print, November 5, 2020, JCX-23-20; and Joint Committee on T axation, Estim ated Budget Effects of the Revenue Provisions Contained in Rules Com m ittee Print 116-68, the “Consolidated Appropriations Act, 2021,” JCX-24-20, December 21, 2020. 2 T hese labels represent generalizations about the use of the 4% and 9% credits and are a helpful way to think about the two different types of credits. T he 9% credit is also commonly referred to as the “competitive credit” because awards of 9% credits are drawn from a state’s annual LIHT C allocation authority and developers must compete for an award. T he 4% credit is also commonly referred to as the “non-competitive credit” or “automatic credit” because developers do not have to compete for an award if at least 50% of the development is financed with tax -exempt bond financing; they are automatically awarded 4% tax credits. T hese 4% tax credits are not drawn from a state’s annual LIHT C allocation authority. 3 T he present value concept allows for the comparison of dollar amounts that are received at different points in time since, for example, a dollar received today has a different value than a dollar received in five years because of the opportunity to earn a return on investments. Effectively, a dollar received today and a dollar received in five years are in different currencies. T he present value calculation converts dollar amounts received at different points in time into a common currency—today’s dollars. 4 IRC §42(b). Congressional Research Service 1 An Introduction to the Low-Income Housing Tax Credit (30% or 70%) and not the credit rates (4% or 9%) that are explicitly specified in the Internal Revenue Code (IRC).⁴

The U.S. Department of the Treasury uses a formula to determine each month the credit rates that will wil produce the 30% and 70% subsidies each month. The formula depends on three factors: the credit period length, the desired subsidy level, and the current interest rate. The credit period length and the subsidy levels are fixed in the formula by law, while the interest rate changes over time according to market conditions. Given the current interest rate, the Treasury'’s formula determines the two different the LIHTC rate that delivers the rates that deliver the two desired subsidy levels (30% and 70%).5 In addition, for certain projects, the resulting credit rates may not be below a minimum (or “floor”) of 4% or 9% (depending on the subsidy level), discussed in more detail below. Once the desired subsidy level.⁵

Because two different subsidy levels are possible, the formula produces two different tax credit rates—the nominal 4% credit rate to ensure the 30% rehabilitation subsidy, and the nominal 9% credit rate to ensure the 70% subsidy for new construction. Once the effective credit rate has been determined, it is multiplied by the development'’s qualified basis to obtain the amount of LIHTCs a project will wil receive each year for 10 years. The credit rate stays constant throughout the 10-year period for a given development, but varies across LIHTC developments depending on when construction occurred and the prevailing interest rate at that time.

time. Minimum Credit Rates The rehabilitation and new construction tax credits have ordinarily not been 4% and 9%. The Tax Reform Act of 1986 (P.L. 99-514) specified that buildings placed in service in 1987 were to receive exactly a 4% or 9% credit rate. Buildings placed in service after 1987 were to receive the credit rate that delivered the 30% and 70% subsidies as determined by Treasury'’s formula. The rehabilitation rehabilitation credit rate has been below 4% every month since January 1988.⁶ 6 The COVID-Related Tax Relief Act of 2020, enacted as Subtitle B to Title II of Division N of the Consolidated Appropriations Act, 2021 (P.L. 116-260), sets a minimum credit (or “floor”) of 4% for the housing tax credit typical y used for the rehabilitation of affordable housing. In other words, the effective rehabilitation credit rate cannot fal below 4%. This change applies to buildings placed in service starting in 2021 and is permanent. The new construction credit rate had similarly been below its nominal 9% rate every month since January 1991 until the Housing and Economic Recovery Act of 2008 (HERA; P.L. 110-289) placed) set a temporary minimum credit of 9% for the new construction credit. The minimum credittemporary "floor" under the new construction credit preventing it from being set at less than 9%. The floor originally applied to developments completed in August 2008 through the end of 2013.⁷7 Following a number of temporary extensions, the floor became a permanent feature of the program in 2015 with enactment of the Protecting Americans from Tax Hikes (PATH) Act (Division Q of P.L. 114-113).⁸

The effect of the floor depends on how far the tax credit rate determined by Treasury is from 9%. The floor has no effect if the credit rate produced by Treasury's formula is 9% or greater; the credit rate will be determined by Treasury's formula and generate a subsidy of up to 70%. If, however, the credit rate determined by Treasury is below the floor, then the credit rate is set equal to 9%. When this happens, new construction projects can potentially 113).8 5 T he choice of interest rate will affect the credit rate that is needed to deliver the specified subsidy levels. IRC §42(b) requires that the Department of the T reasury use an interest rate equal to 72% of the average of the mid-term applicable federal rate and the long-term applicable federal rate. T he mid- and long-term applicable federal rates are, in turn, based on the yields on U.S. T reasury securities. It could be argued that this interest rate, also known as the discount rate, should be higher because LIHT C investments are riskier th an T reasury securities. If this were true, then the LIHT C credit rate determined using the interest rate specified in IRC §42(b) would result in subsidies less than the 30% and 70%. Because Congress defined the subsidy levels to be 30% and 70% using the in terest rate specified in IRC §42(b), this report does not consider how the use of alternative discount rates would affect the program. 6 T he 4% credit rate was 4% during the first year of the program. Since then the rate needed to produce the 30% subsidy has been below 4%. Novogradac & Company LLP, Low-Incom e Housing Tax Credit Handbook, 2006 ed. (T homson West, 2006), pp. 845-850; Novogradac & Company LLP, “ Tax Credit Percentages 2021,” https://www.novoco.com/resource-centers/affordable-housing-tax-credits/tax-credit-percentages-2021. 7 T he floor technically applied to properties that were “placed in service” during that time period. 8 T he floor was originally enacted on a temporary basis by the Housing and Economic Recovery Act of 2008 (P.L. 110-289) and applied only to new construction placed in service before December 31, 2013. T he American T axpayer Relief Act of 2012 (P.L. 112-240) extended the 9% floor for credit allocations made before January 1, 2014. T he T ax Increase Congressional Research Service 2 link to page 5 An Introduction to the Low-Income Housing Tax Credit The effects of the minimum credits depend on how far the tax credit rates determined by Treasury are from 4% and 9%. The minimum credits have no effect if the credit rates produced by Treasury’s formula are at least 4% and 9%; the credit rates wil be determined by Treasury’s formula and generate subsidies of up to 30% and 70%, respectively. If, however, the credit rates determined by Treasury are below the floors, then the credit rates are set equal to either 4% or 9%. When this happens, new construction projects can potential y receive a subsidy above 70%, receive a subsidy above 70%, with the subsidy increasing the furtherfarther the credit rate determined by Treasury'’s formula is below 9%.9 Similarly, rehabilitation projects can potential y receive a subsidy above 30%.9%.⁹ The current interest rate is the key factor determining whether the floor takesfloors take effect. Treasury'’s formula produces low credit rates when interest rates are low and higher credit rates when interest rates are high.¹⁰10 In December 1990, when Treasury'’s formula last determined a credit rate above 9% (9.06%), the 10-year Treasury constant maturity rate was 8.08%.¹¹11 In January 20202021, the rate was 1.81%.¹²around 1%.12 Thus, interest rates would need to increase significantly from current levels for the floor to no longer have an effect.

An Example

A simplified example may help in understanding how the LIHTC program is intended to support affordable housing development. Consider a new apartment complex with a qualified basis of $1 million. mil ion. Since the project involves new construction it will wil qualify for the 9% credit and, assuming for the purposes of this example that the credit rate is exactly 9%, will wil generate a stream of tax credits equal to $90,000 (9% × $1 millionmil ion) per year for 10 years, or $900,000 in total. Under the appropriate interest rate the present value of the $900,000 stream of tax credits should be equal to $700,000, resulting in a 70% subsidy. Because the subsidy reduces the debt needed to construct the property, the rent levels required to make the property financiallyfinancial y viable are lower than they otherwise would be. Thus, the subsidy is intended to incentivize the development of housing at lower rent levels—and thus affordable to lower-income families—that otherwise may not be financiallyfinancial y feasible or attractive relative to alternative investments.

The situation would be similar if the project involved rehabilitated construction except the developer would be entitled to a stream of tax credits equal to $40,000 (4% × $1 millionmil ion) per year for 10 years, or $400,000 in total. The present value of the $400,000 stream of tax credits should be equal to $300,000, resulting in a 30% subsidy.

Prevention Act of 2014 (P.L. 113-295) retroactively extended the 9% floor through the end of 2014 . Division Q of P.L. 114-113—the Protecting Americans from T ax Hikes Act (or “ PATH” Act) permanently extended the 9% floor. 9 T reasury’s formula is designed to produce credit rates necessary to deliver either a 30% or 70% subsidy. T hese credit rates can be, and often are, less than 4% and 9%. For example, the January 2021 tax credit rate, as determined by T reasury’s formula, for rehabilitation construction was 3.09% and the rate for new construction was 7.21%. In this case the 4% and 9% minimum credit rates take effect and the tax credit rates are set to exactly 4% and 9%, respectively. Because these credit rates are above what is needed to deliver a 30% subsidy (3.09%) and 70% subsidy (i.e., 7.21%), it means that the subsidies rise above 30% and 70% when the floors takes effect. 10 T his relationship is an intrinsic feature of the present value formula, and not a result of a decision by T reasury in computing the credit rate. 11 Board of Governors of the Federal Reserve System (US), 10 -Year T reasury Constant Maturity Rate [DGS10], retrieved from FRED, Federal Reserve Bank of St. Louis, January 8, 2020, https://fred.stlouisfed.org/series/DGS10. 12 T reasury does not directly use the int erest rate on 10-year bonds, but as discussed in footnote 5, the interest rate used by T reasury is based on the yields on U.S. T reasury securities. Congressional Research Service 3 An Introduction to the Low-Income Housing Tax Credit The Allocation Process The Allocation Process

The process of allocatingal ocating, awarding, and then claiming the LIHTC is complex and lengthy. The process begins at the federal level with each state receiving an annual LIHTC allocational ocation in accordance with federal law. The administration of the tax credit program is typicallytypical y carried out by each state'’s housing finance agency (HFA). State HFAs allocateal ocate credits to developers of rental housing according to federallyfederal y required, but state -created, allocational ocation plans. The process typically typical y ends with developers sellingsel ing awarded credits to outside investors in exchange for equity. A more detailed discussion of each level of the allocational ocation process is presented below.

Federal Allocation to States

LIHTCs are first allocatedal ocated to each state according to its population. In 20202021, states will wil receive LIHTC allocational ocation authority equal to $2.8125 per person, with a minimum small smal population state allocation of $3,217,500.¹³al ocation of $3,245,625.13 These figures reflect a temporary increase in the amount of credits each state received as a result of the 2018 Consolidated Appropriations Act (P.L. 115-141). The increase is equal to 12.5% above what states would have received absent P.L. 115-141, and is in effect through 2021. The state allocational ocation limits do not apply to the 4% credits, which are automatically automatical y packaged with tax-exempt bond financed projects.¹⁴

14 State Allocation to Developers

State HFAs allocateal ocate credits to developers of eligible rental housing according to federally federal y required, but state -created, qualified allocational ocation plans (QAPs). Federal law requires that a QAP give priority to projects that serve the lowest-income households and that remain affordable for the longest period of time. States have flexibility in developing their QAPs to set their own allocation priorities (e.g., assisting certain subpopulations or geographic areas), and to place additional requirements on awardees (e.g., longer affordability periods, deeper income targeting). QAPs are developed and revised via a public process, allowingal owing for input from the general public and local communities, as well wel as LIHTC stakeholders. Many states have two allocational ocation periods per year. Developers apply for the credits by proposing plans to state agencies.

An allocation An al ocation to a developer does not imply that all allocatedal al ocated tax credits will wil be claimed. An allocational ocation simply means tax credits are set aside for a developer. Once a developer receives an allocation it generally al ocation it general y has two years to complete its project.¹⁵15 Credits may not be claimed until a property is placed in service. Tax credits that are not allocatedal ocated by states after two years are added to a national pool and then redistributed to states that apply for the excess credits. To be eligible for an excess credit allocational ocation, a state must have allocatedal ocated its entire previous allotmental otment of tax 13 Internal Revenue Service, Revenue Procedure 2020-45, https://www.irs.gov/pub/irs-drop/rp-20-45.pdf. From 1986 through 2000, the initial credit allocation amount was $1.25 per capita. T he allo cation was increased to $1.50 in 2001, to $1.75 in 2002 and 2003, and indexed for inflation annually thereafter. The initial minimum tax credit ceiling for small states was $2,000,000, and was indexed for inflation annually after 2003. 14 T ax-exempt bonds are issued subject to a private activity bond volume limit per state. For more information, see CRS Report RL31457, Private Activity Bonds: An Introduction , by Steven Maguire and Joseph S. Hughes. 15 Developers must have the property placed in service in the calendar year an allocation is made. However, a developer can receive an extension which gives them an additional calendar year to have the property placed in service. T o be granted this extension, known as a carryover allocation, at least 10% of anticipated costs must be incurred within the first calendar year. Congressional Research Service 4 An Introduction to the Low-Income Housing Tax Credit of tax credits. This use-or-lose feature gives states an incentive to allocate all al ocate al of their tax credits to developers.

To be eligible for an LIHTC allocational ocation, properties are required to meet certain tests that restrict both the amount of rent that may be charged and the income of eligible tenants. Historically, the "Historical y, the “income test"” for a qualified low-income housing project has required project owners to irrevocably elect one of two income-level tests, either a 20-50 test or a 40-60 test. To satisfy the first test, at least 20% of the units must be occupied by individuals with income of 50% or less of the area'’s median gross income (AMI), adjusted for family size. To satisfy the second test, at least 40% of the units must be occupied by individuals with income of 60% or less of AMI, adjusted for family size.¹⁶

16 The 2018 Consolidated Appropriations Act (P.L. 115-141) added a third income test option that allows al ows owners to average the income of tenants. SpecificallySpecifical y, under the income averaging option, the income test is satisfied if at least 40% of the units are occupied by tenants with an average income of no greater than 60% of AMI, and no individual tenant has an income exceeding 80% of AMI. Thus, for example, renting to someone with an income equal to 80% of AMI would also require renting to someone with an income no greater than 40% of AMI, so the tenants would have an average income equal to 60% of AMI.

In addition to the income test, a qualified low-income housing project must also meet the "“gross rents test"” by ensuring rents (adjusted for bedroom size) do not exceed 30% of the 50% or 60% of AMI, depending on which income test option the project elected.¹⁷

17 The types of projects eligible for the LIHTC include rental housing located in multifamily buildings, single-family dwellingsdwel ings, duplexes, and townhouses. Projects may include more than one building. Tax credit project types also vary by the type of tenants served; for example, LIHTC properties may be designated as housing persons who are elderly or have disabilities.

Properties located in difficult development areas (DDAs) or qualified census tracts (QCTs) are eligible eligible to receive a "“basis boost"” as an incentive for developers to invest in more distressed areas. In these areas, the LIHTC can be claimed for 130% (instead of the normal 100%) of the project'project’s eligible basis. This also means that available credits can be increased by up to 30%. HERA (HERA (P.L. 110-289) enacted changes that allowal ow an HFA to classify any LIHTC project that is not financed with tax-exempt bonds as difficult to develop, and hence, eligible for a basis boost.

Developers and Investors

Upon receipt of an LIHTC award, developers typicallytypical y exchange or "sell"“sel ” the tax credits for equity investment in the real estate project. The "sale"“sale” of credits occurs within a partnership that legally legal y binds the two parties to satisfy federal tax requirements that the tax credit claimant have an ownership interest in the underlying property. This makes the trading of tax credits different than the trading of corporate stock, which occurs between two unrelated parties on an exchange. The partnership form also allowsal ows income (or losses), deductions, and other tax items to be allocated al ocated directly to the individual partners.¹⁸

The sale is usually partners.18 16 Individual income levels are certified by each property manager, although states have some discretion over the specifics of the income verification method. LIHTC participants are prohibited from using HUD’s Enterprise Income Verification (EIV) system to verify tenant income. The EIV system is required to be used in the Section 8 housing voucher program. 17 Rent includes utility costs. 18 For more details on the general tax equity mechanism, see CRS Report R45693, Tax Equity Financing: An Introduction and Policy Considerations, by Mark P. Keightley, Donald J. Marples, and Molly F. Sherlock . Congressional Research Service 5 An Introduction to the Low-Income Housing Tax Credit The sale is usual y structured using a limited partnership between the developer and the investor, and sometimes administered by syndicators. As the general partner, the developer has a relatively small smal ownership percentage but maintains the authority to build and run the project on a day-to-day basis. The investor, as a limited partner, has a large ownership percentage with an otherwise passive role. Syndicators charge a fee for overseeing the investment transactions.

Typically Typical y, investors do not expect their equity investment in a project to produce income. Instead, investors look to the credits, which will wil be used to offset their income tax liabilities, as their return on investment. The return investors receive is determined in part by the market price of the tax credits. The market price of tax credits fluctuates, but in normal economic conditions the price typicallytypical y ranges from the mid-$0.80s to low-$0.90s per $1.00 tax credit. The larger the difference between the market price of the credits and their face value ($1.00), the larger the return to investors. Investors also often receive tax benefits related to any tax losses generated through the project'project’s operating costs, interest on its debt, and deductions such as depreciation. The right to claim tax benefits in addition to the tax credits will wil affect the price investors are willingwil ing to pay.

The vast majority of investors are corporations, either investing directly or through private partnerships. Financial firms are large investors in LIHTC. Partly this is due to the Community Reinvestment Act (CRA), which considers LIHTC investments favorably.¹⁹19 Other investors include real estate, insurance, utility, and manufacturing firms, which are seeking a return in the form of reduced taxes from investing in the tax credits.

The LIHTC finances part of the total cost of many projects rather than the full cost and, as a result, must be combined with other resources. The financial resources that may be used in conjunction with the LIHTC include conventional mortgage loans provided by private lenders and alternative financing and grants from public or private sources. Individual states provide financing as wellwel , some of which may be in the form of state tax credits modeled after the federal provision. Additionally, Additional y, some LIHTC projects may have tenants who receive other government subsidies such as housing vouchers.

Recent Legislative Developments

Appendix. Estimated Future Per Capita Tax Credit Amounts