CRS Updates Report on Low-Income Housing Tax Credit

An Introduction to the Low-Income Housing Tax Credit

Updated January 26, 2021

Congressional Research Service
https://crsreports.congress.gov
RS22389

Mark P. Keightley
Specialist in Economics

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SUMMARY

The low-income housing tax credit (LIHTC) program is the federal government's primary policy 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 $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 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.

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.

Most recently, the Taxpayer Certainty and Disaster Tax Relief Act of 2020, enacted as Division EE 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 Joint Committee on Taxation (JCT) estimates this change will reduce federal revenues by $5.8 billion between FY2021 and FY2030. This change is permanent.

Division EE of P.L. 116-260 also increased, for calendar years 2021 and 2022, the credit allocation authority for buildings located in any qualified disaster zone, defined as that portion of any qualified disaster area which was determined by the President during the period beginning on January 1, 2020, and ending on the date which is 60 day from enactment of P.L. 116-260. For 2021 the increase is equal to the lesser of $3.50 multiplied by the population residing in a qualified disaster zone, and 65% of the state's overall credit allocation authority for calendar year 2020. For 2022, the increase is equal to any unused increased credit allocation authority from 2021 (i.e., 2021 increased credit allocation authority may be carried over to 2022). Buildings impacted by this provision will also be granted a one-year extension of the placed in service deadline and the so-called 10% test. The JCT estimates these changes will reduce federal revenues by $887 million between FY2021 and FY2030.

There were also a number of bills introduced in the 116^th Congress that would have made targeted changes to the LIHTC program. These proposals 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 were proposed by the Affordable Housing Credit Improvement Act of 2019 (H.R. 3077/S. 1703).

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Contents

Overview

Types of Credits

An Example

The Allocation Process

Recent Legislative Developments

Contacts

Author Information

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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 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 financially feasible for tax credit properties to charge lower rents, and thus, potentially expand the supply of affordable rental housing. The LIHTC program is estimated to cost the government an average of $10.9 billion annually.¹

Types of Credits

There are two types of LIHTCs available to developers. The so-called 9% credit is generally reserved for new construction and is intended to deliver up to a 70% subsidy. The so-called 4% credit is typically used for rehabilitation projects utilizing at least 50% in federally tax-exempt bond financing and is designed to deliver up to a 30% subsidy. This report will 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.² 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 The subsidy levels (30% or 70%) are explicitly specified in the Internal Revenue Code (IRC).⁴

The U.S. Department of the Treasury uses a formula to determine the credit rates that will 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 LIHTC 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 credit rate has been determined, it is multiplied by the development's qualified basis to obtain the amount of LIHTCs a project will 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.

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 credit rate has been below 4% every month since January 1988.⁶ The Taxpayer Certainty and Disaster Tax Relief Act of 2020, enacted as Division EE 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. In other words, the effective rehabilitation credit rate cannot fall 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) set a temporary minimum credit of 9% for the new construction credit. The minimum credit applied to developments completed in August 2008 through the end of 2013.⁷ 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 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 will 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 potentially receive a subsidy above 70%, with the subsidy increasing the farther the credit rate determined by Treasury's formula is below 9%.⁹ Similarly, rehabilitation projects can potentially receive a subsidy above 30%. The current interest rate is the key factor determining whether the floors take effect. Treasury's formula produces low credit rates when interest rates are low and higher credit rates when interest rates are high.¹⁰ 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%.¹¹ In January 2021, the rate was around 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. Since the project involves new construction it will qualify for the 9% credit and, assuming for the purposes of this example that the credit rate is exactly 9%, will generate a stream of tax credits equal to $90,000 (9% × $1 million) 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 financially 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 financially 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 million) 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.

The Allocation Process

The process of allocating, awarding, and then claiming the LIHTC is complex and lengthy. The process begins at the federal level with each state receiving an annual LIHTC allocation in accordance with federal law. The administration of the tax credit program is typically carried out by each state's housing finance agency (HFA). State HFAs allocate credits to developers of rental housing according to federally required, but state-created, allocation plans. The process typically ends with developers selling awarded credits to outside investors in exchange for equity. A more detailed discussion of each level of the allocation process is presented below.

Federal Allocation to States

LIHTCs are first allocated to each state according to its population. In 2021, states will receive LIHTC allocation authority equal to $2.8125 per person, with a minimum small population state allocation 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 allocation limits do not apply to the 4% credits, which are automatically packaged with tax-exempt bond financed projects.¹⁴

State Allocation to Developers

State HFAs allocate credits to developers of eligible rental housing according to federally required, but state-created, qualified allocation 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, allowing for input from the general public and local communities, as well as LIHTC stakeholders. Many states have two allocation periods per year. Developers apply for the credits by proposing plans to state agencies.

An allocation to a developer does not imply that all allocated tax credits will be claimed. An allocation simply means tax credits are set aside for a developer. Once a developer receives an allocation it generally has two years to complete its project. ¹⁵ Credits may not be claimed until a property is placed in service. Tax credits that are not allocated 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 allocation, a state must have allocated its entire previous allotment of tax credits. This use-or-lose feature gives states an incentive to allocate all of their tax credits to developers.

To be eligible for an LIHTC allocation, 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 “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

The 2018 Consolidated Appropriations Act (P.L. 115-141) added a third income test option that allows owners to average the income of tenants. Specifically, 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

The types of projects eligible for the LIHTC include rental housing located in multifamily buildings, single-family dwellings, 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 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's eligible basis. This also means that available credits can be increased by up to 30%. HERA (P.L. 110-289) enacted changes that allow 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 typically exchange or “sell” the tax credits for equity investment in the real estate project. The “sale” of credits occurs within a partnership that legally 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 allows income (or losses), deductions, and other tax items to be allocated directly to the individual partners.¹⁸

The sale is usually 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 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, investors do not expect their equity investment in a project to produce income. Instead, investors look to the credits, which will 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 typically 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'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 affect the price investors are willing 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.¹⁹ 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 well, some of which may be in the form of state tax credits modeled after the federal provision. Additionally, some LIHTC projects may have tenants who receive other government subsidies such as housing vouchers.

Recent Legislative Developments

Most recently, the Taxpayer Certainty and Disaster Tax Relief Act of 2020, enacted as Division AE. 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 Joint Committee on Taxation estimates this change will reduce federal revenues by $5.8 billion between FY2021 and FY2030.²⁰ This change is permanent.

Division EE of P.L. 116-260 also increased, for calendar years 2021 and 2022, the credit allocation authority for buildings located in any qualified disaster zone, defined as that portion of any qualified disaster area which was determined by the President during the period beginning on January 1, 2020, and ending on the date which is 60 days from enactment of P.L. 116-260. For 2021 the increase is equal to the lesser of $3.50 multiplied by the population residing in a qualified disaster zone, and 65% of the state's overall credit allocation authority for calendar year 2020. For 2022, the increase is equal to any unused increased credit allocation authority from 2021 (i.e., 2021 increased credit allocation authority may be carried over to 2022). Buildings impacted by this provision will also be granted a one-year extension of the placed in service deadline and the so-called 10% test. The JCT estimates these changes will reduce federal revenues by $887 million between FY2021 and FY2030.

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 (1) the state's 2020 LIHTC allocations to buildings located in qualified 2017 and 2018 California disaster areas, or (2) 50% of the state's combined 2017 and 2018 total LIHTC allocations.

Author Information

Mark P. Keightley
Specialist in Economics