tax credit financing for community and economic development projects july 24, 2009 paul m. jones,...
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Tax Credit Financing for Community and Economic
Development Projects
Tax Credit Financing for Community and Economic
Development Projects
July 24, 2009 July 24, 2009
Paul M. Jones, Jr.Partner
Ice Miller LLP (317)236-5959
AICAIC
OverviewOverview Tax Credit Financing Impact of American Recovery and
Reinvestment Act of 2009 (“ARRA”) on Tax Credits and Project Finance
Renewable Energy Incentives
OverviewOverviewA tax loophole is "something that benefits the
other guy. If it benefits you, it is tax reform.''
Russell B. Long, U.S. Senator
OverviewOverviewTypes of financing?
1. Conventional (taxable) debt2. Tax-exempt debt3. Owner equity4. Private equity 5. Tax credit equity6. Grants
OverviewOverviewTax Credit Equity Historic rehabilitation tax credits New markets tax credits Other federal and state tax credit financing
Renewable energy tax credits New advanced energy property tax credit Low-income housing tax credits Indiana state tax credits such as community
revitalization enhancement district (CReED) credits and industrial recovery site credits
Tax Credit EquityTax Credit Equity
What is “equity”? “Equity” represents the funding gap
between the cost to acquire and develop or redevelop the project and the amount of other funding sources that the owner can secure. Amount of Debt on a Project is limited by:
Project’s fair market value (FMV) Project’s net operating income (NOI)
Tax Credit EquityTax Credit Equity
Where does equity come from? Project owner as own investment Investors secured by the Project owner
Motivated by economic return Put in $1, get back $2 in cash
Motivated by tax savings Put in $1, get $2 in tax benefits (losses/credits)
Motivated by both economic return and tax savings Put in $1, get $1 in cash and $1 in tax benefits
Tax Credit EquityTax Credit Equity
How does the investor get the tax losses and tax credits? Owner must be able to pass losses and credits
through to the investor Owner must be a “pass-through” entity for tax purposes,
NOT a tax paying entity “Partnership” for federal income tax purposes Partnership or Limited Liability Company (LLC) Cannot be a Corporation
Investor must have an ownership interest in the owner “Partner” in a partnership “Member” in an LLC
Historic Rehabilitation Tax CreditHistoric Rehabilitation Tax Credit
Federal Historic Rehabilitation Tax Credit Section 47 of the Internal Revenue Code of
1986 (the “Code”) Two Credit Rates
10% credit for pre-1936, non-certified historic structures
20% credit for “certified historic structures” Credit amount equals credit rate (10% or 20%)
multiplied by amount of “qualified rehabilitation expenditures”
Historic Rehabilitation Tax CreditHistoric Rehabilitation Tax Credit
20% Tax Credit for “Certified” Projects Must involve a “certified historic structure” Must result in “qualified rehabilitated
building” Must have “qualified rehabilitation
expenditures” Must be a “certified rehabilitation”
What are New Markets Tax Credits (NMTCs)?What are New Markets Tax Credits (NMTCs)?
Federal tax credits intended to encourage
private equity investment in qualified “low-
income” communities. Code Section 45D.
Why Businesses Use NMTC FinancingWhy Businesses Use NMTC Financing
Lower cost of financing
Flexible terms (i.e., interest only feature)
Provide needed equity or fill gaps in
financing.
Qualified BusinessQualified Business
LOCATION
LOCATION
LOCATION
Credit Amount and PeriodCredit Amount and Period
The NMTCs are equal to 39% of a qualified equity investment and are claimed over a seven year period starting on the date when the investment is made.
Investors may claim NMTCs equal to 5% of their investment in years one to three and 6% of their investment in years four to seven.
How Does the NMTC Program Work?How Does the NMTC Program Work?
NMTCs are awarded by the Community Development Financial Institutions Fund (“CDFI Fund”) to entities which qualify as Community Development Entities ("CDEs") and which apply for an allocation of credits.
How Does the NMTC Program Work?How Does the NMTC Program Work?
Once a CDE receives tax credits, investors (such as banks) invest in the CDE by contributing cash.
The CDE uses cash from the investment to invest in qualifying businesses.
Investment in qualifying business may be in the form of capital or equity investment or loans to qualifying businesses.
CDEsCDEs
A CDE can be owned or sponsored by either a for-profit or a nonprofit entity, or both. o Local governments increasingly forming CDEs and
seeking/obtaining their own allocation of NMTCs (e.g., Fort Wayne, IN, Indianapolis, IN, Philadelphia, PA, Los Angeles, CA, Phoenix,AZ, and Chicago, IL)
o Public-private partnerships
To qualify, the entity must have a primary mission of community development and must be accountable to the community.
Qualified BusinessesQualified Businesses
A wide range of businesses are eligible for assistance, including for-profit retail, manufacturing, service businesses and nonprofit businesses.
Residential rental housing is specifically excluded, along with certain other businesses such as golf courses, massage parlors and liquor stores.
Qualified BusinessesQualified Businesses
In general, a qualifying business must meet the following criteria: At least 50% of its total gross income derived from
activities in a low income community; At least 40% of its tangible property is located in a
low income community; At least 40% of its services are performed in a low
income community. Presumably this would require that the business have employees, but the regulations provide a safe harbor: If 85% of tangible property is located in a low income
community, the business is deemed to have met the 40% services test.
Qualified BusinessesQualified Businesses
In general, a qualifying business must meet the following criteria (cont.): Less than 5% of its property is attributable to
nonqualified financial property (e.g., debt, stock, partnership interests, and annuities) excluding reasonable amounts of working capital held in cash (or cash equivalents) and certain debt instruments.
Qualified BusinessesQualified Businesses
In general, a qualifying business must meet the following criteria (cont.): Less than 5% of its property is attributable to
collectibles (e.g., art, antiques, stamps, and coins) other than collectibles held primarily for sale to customers in the ordinary course of business; and
Qualified BusinessesQualified Businesses
A "low income community" is defined as a census tract where: the poverty rate exceeds 20%; or the median income is below 80% of the
greater of: Statewide median income; or Metropolitan area median income (for
metropolitan tracts only)
Investor’s IncentiveInvestor’s Incentive
The NMTCs are intended to enhance investor returns.
Leverage structure allows tax credit investor to generate most of its return from credits alone.
Combining the NMTCs With Other SubsidiesCombining the NMTCs With Other Subsidies
The NMTCs can be combined with other federal and state tax and nontax subsidies (e.g., historic rehabilitation tax credits).
The NMTCs generally cannot be combined with low-income housing tax credits.
Condominium structure. Definition of rental housing.
Typical NMTC DealsTypical NMTC Deals
Commercial real estate projects including nonprofit office space, community centers, commercial office/retail space
Offering below market rate loans as well as equity investments
Typically 7-year term Exit strategy after 7 years varies (e.g., put/call
exit payment, balloon payment, refinancing, or amortization of loan over a term of years)
New Markets Tax CreditsNew Markets Tax Credits
Examples of NMTC transactions closed in Indiana Charter schools Community center Office/retail space Parking garage Telecommunications center
Impact of ARRA Impact of ARRA
Additional $1.5B in NMTC volume for 2008 allocation
Additional $1.5B (for a total of $5B) in NMTC volume for 2009 allocation ($22.5B in applications received – awards expected in October 2009)
Impact of ARRAImpact of ARRA Renewable energy tax credits (e.g., solar,
wind, biomass, geothermal facilities, etc.) Code Section 48, 30% investment tax credit
(“ITC”) Code Section 45, production tax credit (“PTC”) Election to claim ITC in lieu of PTC Grants in lieu of credits (Treasury guidance
issued in July 2009) Careful tax analysis required to determine which
model works best for a particular project
Impact of ARRA Impact of ARRA
New Code Section 48C Qualifying Advanced Energy Project Credit.
30% investment tax credit for manufacturers of advanced energy property. Application process for $2.3B in volume.
A qualifying advanced energy project is a project that reequips, expands, or establishes a manufacturing facility for the production of certain types of advanced energy property.
Treasury guidance is forthcoming, but no guidance yet on how this program will be interpreted or administered
Impact of ARRA Impact of ARRA
Tax Credit Bond programs Clean Renewable Energy Bonds Qualified Energy Conservation Bonds
Grants and Loan Guarantees http://in.gov/gov/INvest.htm http://www.recovery.gov US DOE and USDA Indiana State Energy Program
SummarySummaryThink outside the box
Don’t overlook possible tax credit equity opportunities
Structures are complex, but useful when designed appropriately
C230 DisclosureC230 DisclosureThis information is provided for general
information purposes only, and is not tax or legal advice.
This presentation, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein.