Using Tax Incentives to Develop & Invest in Historic Prop erties. Preservation Massachusetts Webinar December, 2013

Transcription

1 Historic Rehabilitation Tax Credits: Using Tax Incentives to Develop & Invest in Historic Prop erties Preservation Massachusetts Webinar December, 2013

2 Today s Presenters John Mackey, CPA Partner CohnReznick john.mackey@cohnreznick.com com Dan Kolodner Attorney Klein Hornig, LLP dkolodner@kleinhornig.com Jason Korb Principal Capstone Communities, LLC jkorb@capstonecommunities.com Doug Kelleher Principal Preservation Consultant Epsilon Associates dkelleher@epsilonassociates.com Jim Igoe President Preservation Massachusetts jigoe@preservationmass.org 1

3 Background What Is A Tax Credit? How Is The Historic Tax Credit Calculated? 20% of the qualified rehabilitation expenditures with respect to any Certified Historic Structure with credit in the year of substantial completion. December 11,

4 What Kinds of Building Qualify? Income Producing properties almost anything but a personal residence Apartments Commercial Buildings Hotels Office Buildings Warehouses Distribution Facilities Sports Facilities Mixed Use of Any of the Above December 11,

5 Property Subject to Historic Tax Credit Individually listed on the National Register of Historic Places OR Located in a registered historic district and certified by the National Park Service as contributing to the historic significance of that district OR A property p determined eligible for listing in the National Register, either individually or part of a potential historic district December 11,

6 Certified by the NPS December 19,

7 Historic Preservation Certification Application Part I: Evaluation of significance Narrative History and darchitectural t Description Part II: Description of Rehabilitation Documentation of existing conditions, identify character-defining features Description of proposed work Part III: Final Certification Documentation of completed project December 19,

8 Late Submission of Certifications Credit is allowable when building is placed in service Part I Needs to be submitted prior to placed in service date Exception: Building individually listed on the National Register Note: Simply being in a Historic District does not count Part II Should be submitted prior to start of rehabilitation Failure to submit may result in project changes May add to costs in the long run Needs to be filed prior to claiming the credit as does National Register listing Part III Failure to obtain is fatal to credit Must obtain within 30 months of claiming the credit or Extend the Statute December 19,

9 Substantial Rehabilitation Test The amount of qualified rehabilitation expenditures during a 24-month period must exceed adjusted basis Adjusted basis includes expenses incurred prior to the start of the measuring period Measuring period must end sometime during the year the property is completed and/or placed in service If test is met, ALL qualified rehabilitation expenditures qualify for the credit 60-month test if construction period is greater than 24 months December 11,

10 Construction Period (48 months) 24-Month Measuring Period Year 1 Year 2 Year 3 Year 4 Basis Placed in Service Basis is original basis plus construction costs to beginning of 24-month measuring period. Rehabilitation tax credit will be based on ALL costs incurred during construction period. December 11,

11 Qualified Rehabilitation Expenditures Definition Renovation Restoration Reconstruction Must be a Substantial > $5,000 or adjusted basis December 11,

12 Qualified Rehabilitation Expenditures All capitalized building costs of the historic structure Construction period taxes and interest associated with rehabilitation related borrowing Architectural fees Engineering Fees Legal fees related to construction Insurance fees related to construction Reasonable development fees Historic consultants fee December 11,

13 Qualifying Expenditures Walls, partitions, floors, ceiling Permanent coverings such as paneling or tiling Windows and doors Components of central air or heating systems Plumbing, electrical, and lighting systems and fixtures Chimneys, stairs, escalators, elevators Sprinkler systems, fire escapes Other components related to the operation or maintenance of the building December 11,

14 Non-Qualifying Expenditures Acquisition costs Enlargement, new addition costs Landscaping, parking lots, sidewalks, fences Outside environmental cleanup Asbestos removal is OK (inside, not outside) Life safety improvements are OK Demolition costs (building removal) December 11,

15 Non-Qualifying Expenditures Appliances Furniture Cabinets (if not permanently affixed) Carpeting (if tacked in place and not glued) Decks (not part of the original building) December 11,

16 Non-Qualifying Expenditures Feasibility studies Marketing costs Rent up costs Operating deficits Reserves Permanent financing Syndication costs December 11,

17 Hobby Loss Rules Rehabilitation tax credit property is not exempt from the activity not engaged in for profit rules (hobby loss rules) Need to have profit motive beyond tax benefits Substantiate ti t based on total t picture Discussion of Historic Boardwalk and Consolidated Edison cases later in presentation December 11,

18 Placed in Service Condition or state of readiness Not necessarily the certificate of occupancy December 11,

19 Basis Reduction Required Reduce the basis by the full amount of the credit (single tier entity) Example: Cost $ 100,000 Credit $ 20, Basis for Depreciation $ 80,000 Master lease pass through requirements December 11,

20 Recapture Year 1 100% NO Credit Year 2 80% Year 3 60% Year 4 40% Year 5 20% Year 6 and later 0% December 11,

21 Property Leased to a Tax-Exempt Entity No credit if subject to a disqualified lease Check QL definition: iti for example, < 20 year lease sale/leases are issues Exception: De minimis use 50% or less Ignore Apportion December 11,

22 Disqualified Lease Rules Tax Exempt Entity Any part of the property was financed with tax exempt bonds and entity involved in financing Lease terms provide a fixed or determinable purchase price OR an option to buy Lease term >20 years Same lessee uses the property p before and after the sale or lease December 11,

23 Common Investment Structures Single entity structure Master lease/credit pass through structure December 11,

24 Common Investment Structures Managing Member (Developer Affiliate) Tax Credit Investor LLC Tax Credit Investor.01% credits, profits & losses, fees and cash flow Developer Equity Historic Tax Credit Equity 99.99% credits, profits & losses and cash flow Tax Credit LLC (Property Owner) Dev Fee Developer Loan Proceeds Debt Service Payments Rental Payments Construction/ Perm Lender Tenants December 11,

25 Tax Credit and Lessee Lessee may claim credit if: He/she incurs cost, or Credit is passed through December 11,

26 Use of the Credit by a Lessee Lease term must be 32 years or greater Lessees aggregate the expenditures to meet substantial rehabilitation test Lessee may claim the credit if the Lessor incurs the cost of the rehabilitation and elects to pass the credit through Lessor does not reduce basis Lessee must ratably include credit amount in income over depreciable life December 11,

27 Special Allocations Partnerships or limited liability company are used to allocate income, gain, loss, or credit General rule: each partners share of the basis of investment tax credit property will be based on the profit ratio of the partnershipp December 11,

28 Master Lease/Credit Pass Through Structure Developer Equity Managing Member (Developer Affiliate) Tax Credit Investor LLC 90% Profits & Losses,.01% Credits, Profits 99.99% 99% Credits, Historic Tax Credit Fees and Cash Flow & Losses, Fees and Profits & Losses, Equity Cash Flow and Cash Flow Landlord, LLC (Property Owner/Lessor) Loan Proceeds Debt Service Payments Pass through of Historic Tax Credits & Share of Residual Lease Payment & Equity Investment 10% profits, losses, and Cash Flow Master Tenant, LLC (Master Tenant) Rental Payments Construction/Perm Lender Sub-Tenants/End Users December 11,

29 Recent Developments: Case Law

30 Recent Developments: Case Law Virginia Historic Tax Credit Fund 2001 LP v. CIR (3/20/11) Tax treatment t t of state t tax credits Fourth Circuit decision reverses Tax Court (12/2009) Having major impact on state tax credit structuring Consolidated Edison Company Inc. of New York v. United States, No (Fed. Cir. January 9, 2013) While not a historic i tax credit case, the case changes how put options are evaluated Historic Boardwalk Hall, LLC v. Commissioner, No (3 rd Cir., Aug 27, 2012) Case appealed to 3 rd Circuit, and 3 rd Circuit reversed the Tax Court December 11,

31 Historic Boardwalk Hall:Conclusions The appeals court decision was primarily decided on the investor not being a partner in the transaction The decision does NOT provide any bright line guidance to restructure transactions, nor did it spell out any actions that could be taken by an investor to be deemed a partner It is possible to draw some preliminary conclusions and/or recommendations based on the decision, but the tax credit industry is still in flux months later Post HBH, historic tax credit deal structuring is being changed to maximize the potential for the investor being a partner in the transaction with a focus on downside risk and upside potential IRS guidance is promised sometime in late 2013 Is it possible to give a HTC tax opinion post HGH? December 11,

32 Current Transaction Structuring after HBH Downside Risk: More Risk = Partner? What type of guarantees can be provided to the investor? Should there be limitations on the total amounts guaranteed? When should the investor make its initial investment in the project? How much should such initial investment be? What can the investor require as a condition for further investment? t? December 11,

33 Current Transaction Structuring after HBH Upside Potential: More Financial Upside = Partner? What kind of upside potential will a potential investor see? Greater than 3% cash on cash return? Managing cash flow after HBH: what happens if the project hits a home run? Dealing with the exit: Put options/call options Flips December 11,

34 HBH: Next Steps Due to HBH, a limited investor market has become smaller HTC transactions are still closing, but with more concern placed on downside risk and upside potential, in various combinations No one size fits all approach Difficult to structure pay as you go transactions due to lack of downside risk Difficult to structure sandwich lease transactions due to lack of upside potential Potential investment pricing considerations: More risk = lower tax credit equity December 11,

35 Thank You John Mackey, CPA Consultant CohnReznick, LLP 1 Boston Place, Suite 500 Boston, MA (617) John.Mackey@cohnreznick.com Jason Korb Principal Capstone Communities LLC 165 Amory Street Cambridge, MA (617) Jkorb@capstonecommunities.com Jim Igoe, President Preservation Massachusetts Old City Hall 45 School Street Boston, MA Daniel J. Kolodner Senior Counsel Klein Hornig LLP 101 Arch Street, Suite 1101 Boston, MA (617) Dkolodner@kleinhornig.com Doug Kelleher Principal Epsilon Associates Three Clock Tower Place Suite 250 Maynard, MA (978) Dkelleher@epsilonassociates.com December 11,