FAQs Regarding 4% Housing Tax Credit Developments financed with Private Activity Bonds

These are two federal tools that enable the production of affordable rental housing for low income persons by providing the developers of that housing with financing incentives. A bond is an interest bearing government or corporate note that obligates the borrower to make scheduled principal and interest payments to the investor and to repay the principal amount of the loan at maturity. Developers use the amount borrowed from investors to build affordable housing and agree to set aside a certain percentage of units for very low, or low income renters, thus keeping rents "affordable" for those who qualify to live in these units. The mortgage payments on the loans are used to repay the investors. Bonds issued under the Private Activity Bond program are primarily tax-exempt however they can be taxable. The bond program is used to provide low interest loans to the development and subsequently has a mortgage on the property.

The Housing Tax Credit is a credit or reduction in tax liability each year for 10 years for owners and investors in affordable-income rental housing that is based on the costs of development and the number of qualified affordable-income units. By providing a credit against tax liability or a dollar-for-dollar reduction in the amount of liability, the housing tax credit is an incentive for individuals and corporations to invest in the construction or rehabilitation of affordable housing for low-income families. The tax credit is used as a cash down payment (or equity) for the development and as long as there are no significant compliance violations, the tax credits do not have a repayment.

The tax credit and bond programs were created under the Tax Reform Act of 1986 to provide incentives for private investment and development of affordable / workforce housing for low–to–moderate income individuals and families to help relieve the financial burden of public housing on the federal budget. The tax credit and bond programs provide financial assistance for a wide range of development including new construction, substantial rehabilitation and the acquisition and rehabilitation of properties. The tax credit program is much like a cash down payment and the bond program provides a lower interest rate on the mortgage on the development. These programs allow the construction of high quality, decent affordable housing.

In many instances there is a significant difference between tax credit and bond properties and public housing properties. Most developments in the TDHCA rental housing portfolio built using Housing Tax Credits and Private Activity Bonds require tenants to have income of at least 2 to 2 ½ times the rent. These housing developments further differ from public housing in that they are privately owned and privately managed and they primarily serve individuals and families with incomes between 30-80% of the area median family income. Most public housing developments serve individuals and families at 30% and below the area median family income. Tenants of tax credit or bond properties may include: administrative personnel, school teachers; police officers; firefighters; mechanics; retail employees; single parents who are balancing career and family while attending school; city employees; sales clerks; and retirees. The program's rent and income levels vary from county to county.

The Housing Tax Credit and Private Activity Bond programs are not rental assistance programs like the Housing Choice Voucher or Section 8 Voucher programs. Tenants who qualify for Housing Choice Vouchers or Section 8 Tenant Vouchers may lease an apartment at a tax credit or bond property, however they must qualify under the same requirements as any other tenant. Federal law requires the property owners to accept tenants with rental assistance vouchers.

This is an important distinction. Tax-Exempt bonds refer to the tax exemption to the bond purchaser not an exemption of property taxes. The purchaser of the bonds is willing to accept a lower rate of return on their investment because they do not have to pay income tax on the profit of the investment. In turn, the lender for the mortgage on the development can charge a lower interest rate to the developer. The developer then uses that lower interest rate to assist in building the development. This is not correlated to a property tax exemption. The Texas Property Tax Code allows qualified developers / owners to an exemption from paying a portion of the property taxes assessed to a property. Currently, state law does grant a 50% or a 100% property tax exemption to certain types of nonprofits that are eligible for the property tax exemption.

Pre-applications are required to be submitted to the Department and are reviewed initially in accordance with threshold and scoring criteria identified in the Multifamily Housing Revenue Bond Rules. The pre-application is then presented to the Department's Governing Board for consideration of an Inducement Resolution. If the resolution is approved, the application is submitted to the Texas Bond Review Board to await a Certificate of Reservation. Once a reservation is issued by the Bond Review Board, the bond financing must be closed within 180 days or the reservation will be cancelled. Within the 180 day timeframe a public hearing is scheduled that meets the requirements of the Tax Equity and Fiscal Responsibility Act (TEFRA) and all applicable recipients are notified of the hearing and the anticipated TDHCA Board meeting at which the application will be presented to the Board. Moreover, a full application is submitted to the Department and is reviewed for specific criteria that includes, but is not limited to, assuring good construction quality, rents that do not exceed the maximum allowable amount, tenant supportive services, unit and common amenities offered and compliance with all the Department's applicable rules including but not limited to the Multifamily Housing Revenue Bond Rules, the Qualified Allocation Plan, Uniform Multifamily Rules, and the Compliance Rules. The application is also reviewed by the Real Estate Analysis Division for full financial feasibility and is reviewed for previous participation to ensure compliance with other relevant departmental programs. The application will then be presented to the Department's Governing Board for their review and decision. TDHCA, as an issuer in the Private Activity Program, will then submit a notice to the Texas Bond Review Board of its intent to issue bonds. Once the Texas Bond Review Board approves the issuance, a closing date for the bond financing will be scheduled. The process for local housing finance corporations or public facility corporations that issue Private Activity Bonds is different than that of the Department.

The federal government created the program as an incentive to encourage developers to build and privately own affordable housing. The developer/owner designs and builds the development and either personally manages or hires a management company to run the property once it is completed and leased to tenants. The developer receives a fee proportionate to the total construction costs. This fee is paid to the developer over a 10-year period of time. The developer/owner is financially liable during the construction and lease-up periods through personal guarantees to the mortgage lender or construction lender. The developer (in the majority of developments) is the private owner and has an incentive to maintain the development so that it will retain its value over the long term (beyond the affordability or compliance period of 15 years). The income derived from a development can be substantial if the development is properly maintained and managed. Consequently, these properties are significant investments for developers/owners.

The Department is vigorous in ensuring that all promises are kept by the applicant. TDHCA performs a final inspection near the end of the construction phase to ensure the development is built according to the specifications outlined in the application. Any material changes to the application must be approved by the Department. Moreover, there are several different entities involved with a bond transaction. There is a construction lender that is responsible for the financing during construction. There is a permanent lender (or bond purchaser) and there is a tax credit investor which is the entity that will be buying the tax credits. All three of these entities have a vested financial interest in the development and perform their own inspections during the construction period and long-term operation of the development.

The Department performs desk reviews / audits quarterly for all Bond and Housing Tax Credit developments. Additionally, the Department completes a comprehensive on-site review for all Housing Tax Credit properties every three years. During these on-site visits, the Department monitors for the physical appearance of the property, ensures units are occupied by eligible households, the development is charging the appropriate rent for the household, and that tenants are living in a safe, healthy environment. The U. S. Department of Housing and Urban Development requires a limit of no more than 2 persons per bedroom. Desk reviews are a modified version of an onsite visit. The Department verifies that the required restrictions are met (i.e. low-income, eligible tenants, special needs) and that units are occupied by the correct households. The desk review is based on information the owner submits to the Department. If there are any issues that require attention the Department will notify the owner. In addition, state law requires that reserve accounts for any maintenance and future repairs for the property are funded.

The Compliance and Asset Oversight Division currently has 44 employees. Fifteen of those employees are monitors who conduct onsite visits at multifamily rental properties. According to the property inventory that is published on our website, TDHCA has slightly over 2,000 Housing Tax Credit properties with approximately 209,000 units. As properties are approved monthly, these numbers continue to change.

According to the property inventory published on our website, TDHCA has approximately 2,500 Housing Tax Credit properties with approximately 300,000 units. As properties are approved monthly, these numbers continue to change.

The enforcement of existing statutes and rules is a priority for TDHCA. Accordingly, if a developer is found to be in violation of these statutes and rules, several outcomes are possible. First, the owner can be debarred from applying for any programs offered by the Department. Second, the Department can file suit against the owner for non-performance on the Regulatory Agreement or the Land Use Restriction Agreement (LURA). Third, there is a risk of losing the tax-exempt status on the bonds and since the bonds are being held by investors, the investors would then have to pay taxes on the income they earn on that investment. Fourth, tax credits can be recaptured by the Internal Revenue Service (IRS). If there is a recapture of credits then the owner would have to reimburse the IRS everything that had been disbursed by the investor of the tax credits up to that point.

With every bond transaction there is a Bond Regulatory Agreement and with Housing Tax Credit transactions there is a LURA. The Regulatory Agreement and LURA are agreements between the Department and the property owner that sets forth certain restrictions concerning the Development. These restrictions can include, but are not limited to, the following: maximum allowable rents, tenant supportive services, development amenities, tax covenants, and replacement reserve funds created for the purpose of repairs and maintenance. Both of these documents stay in effect for a minimum of 30 years (or longer if the bonds are still outstanding) even if the property is sold. The Regulatory Agreement and LURA are attached to the land and not the owner. In the event a property is sold, the new owner will be required to assume responsibility for the restrictions on the property.

It is possible for the tenant population to be changed; however, these instances have been rare. Such change would constitute a material amendment to the LURA and must follow the process identified in the Department’s rules. Such proposal would undergo further evaluation by the Department.

The development owner establishes tenant requirements that will apply to all tenants equally. For example, criminal and credit background checks might be completed just as they would be for any other tenant in multifamily developments. The development owner, not TDHCA, sets the requirements. It is the development owner's responsibility to make sure that all the tenants who are living on the property qualify based on their income. The Department will monitor for income restrictions and tenant occupancy, but the ongoing responsibility is with the owner and the management company they have selected. The development owner can establish procedures up to and including eviction for non-payment of rent which is consistent with state eviction laws that would be applicable to any other apartment complex. The following chart is helpful in identifying the responsibilities of TDHCA and the Developer.

The management company of a property will generally circulate a survey to all of the tenants to determine the tenant profile and the types of services that would be of interest to the tenants. A complete list of these services can be found in the Department’s Qualified Allocation Plan.

A proposed application for a new development cannot be constructed, within one linear mile (measured by a straight line on a map) or less from another tax credit property that (a) was awarded tax credits within the last three years, and (b) serves the same type of household as the new development regardless of whether the Developments serve families or elderly individuals and (c) is new construction. The only scenario in which this rule can be void is if a development receives prior approval from the governing body of the appropriate municipality or county containing the Development through a resolution from that governing body. This rule only applies to developments located in Dallas, Tarrant, Harris, Travis, and Bexar counties.

The Board members are selected and appointed by the Governor and confirmed by the Senate. They serve six year terms and rotate out every two years.

The TDHCA Governing Board takes its role in developing and overseeing affordable housing very seriously and carefully examines all staff recommendations regarding these applications. In making the decisions, the Board may evaluate, consider, and apply its discretion which may include a variety of factors such as: the developer market study; the location, the compliance history of the developer, the financial feasibility, the appropriateness of the development's size and configuration in relation to the housing needs of the community in which the development is located, the development's proximity to other low income developments, the availability of adequate public facilities and services, the anticipated impact on local school districts, zoning and other land use considerations, any matter considered by the Board to be relevant to the approval decision and in furtherance of the Department's purposes, and other good cause as determined by the Board.

The Board has denied applications based on the financial feasibility of a development, concentration of affordable housing in certain areas, the demographics of the census tract in which the development is located or the performance of schools or instances of violent crime in the area. Each Board member has the authority to use their own discretion in making decisions.

Each board meeting package is posted on the Department's website 7 days prior to the meeting. In order for any comments to be included in these materials, persons making comment must ensure that the Department receives them at least 4 days prior to the web publication. Board meetings are public hearings and open to the public. Interested persons are encouraged to make comments directly to the Board at these meetings. Public comment is taken with each agenda item as well as at the end of the Board meeting. For details and additional information about public participation in the Department’s public comment process visit TDHCA’s Public Comment Center

The transcript from the TEFRA public hearing, in its entirety, is included in the Board package that is given to each Board member. Additionally, information regarding the Development is provided to the Department's Board to prepare them for the Board meeting. All comments and materials received are carefully read by staff and a summary of the comments received are also included in the materials that are presented to the Board.

The Resources for Neighborhoods page contains information on affordable housing as it relates to property values, crime, impact on local school districts and impact on the economy. These studies are not affiliated with the Department.

Callable bonds – Bonds can be called if it is paying a higher coupon rate than the current market interest rates.

Refunding – Issuance of Refunding Bonds, the proceeds of which are used to repay the original bonds.

Trust Indenture – An agreement between the issuer and the trustee containing the terms and procedures for payment of the bonds.

Regulatory Agreement – An agreement entered into between the borrower, the bond issuer and the trustee specifying the income and rent restrictions a project owner must comply with for the bonds to retain their tax exempt status.

For additional information on the Private Activity Bond program or the 4% Housing Tax Credit program you can contact Teresa Morales, Director of Multifamily Bonds at 512-475-3344 or teresa.morales@tdhca.state.tx.us.