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Guide for Completing Form 8823 - page 105 / 197





105 / 197

*Federal Subsidies for Buildings Placed in Service Before July 31, 2008*

*For buildings placed in service before July 31, 2008, former IRC§42(b)(2)(B)(ii) (now IRC §42(b)(1)(B)(ii))* provides that the Applicable Percentage for new buildings that are federally subsidized is the 30 percent present value. *Former* IRC §42(i)(2)(A) provides that a new building is federally subsidized for any tax year if, at any time during such tax year or any prior tax year, there is or was outstanding any obligation the interest on which is exempt from tax under §103, or any below market Federal loan, the proceeds of which are or were used (directly or indirectly) with respect to the building or its operation. However, the building will become eligible for the 70 percent present value credit if (1) by the close of the first year of the credit period the taxpayer elects (on Part II of Form 8609) to reduce the Eligible Basis of the building by the principal amount of the loan or by the proceeds of the tax-exempt bond, or (2) before the building is placed in service, the taxpayer repays the loan or redeems the tax-exempt bond.

*IRC §1400N, Tax Benefits for Gulf Opportunity Zone

Under IRC §1400N)(c)(6), loans from Community Development Block Grant3 funds are not considered a federal subsidy if the low-income buildings are located in the Gulf Opportunity (GO) Zone, the Rita GO Zone, or the Wilma GO Zone and the low-income buildings were placed in service during the period beginning on January 1, 2006 and ending on December 31, 2010.*

*Assistance Provided Under the HOME Investment Partnership Act*

*For buildings placed in service before July 31, 2008, former* IRC §42(i)(2)(E)(i) generally provides that assistance provided under the HOME Investment Partnership Act (HOME) *or the Native American Housing Assistance and Self-Determination Act of 1986 (NAHASDA)* with respect to any building will not be treated as a below market Federal loan if 40 percent or more of the residential units in the building are occupied by individuals whose income is 50 percent or less of the Area Median Gross Income (AMGI). *This Code section is commonly referred to as the 40-50 rule.*

Example 14: Qualifying for the 70 Percent Present Value Credit Under IRC §42(b)

A new qualified low-income housing project consists of Building 1 and Building 2, each containing 100 residential rental units. Forty percent of the units in each building are low-income units. The owner elected the 40/60 minimum set-aside under IRC §42(g)(1)(B). Also, the owner elected, on Form 8609, Low-Income Housing Credit Allocation Certification, to treat the buildings as part of a multiple building project. The owner obtained a HOME loan at less than the AFR for the project.

The rule under IRC §42(i)(2)(E)(i) applies on a building-by-building basis. To qualify for the 70 percent present value credit, the taxpayer must rent at least 40 units in both Building 1 and Building 2 to tenants whose income is 50 percent of less of AMGI throughout the 15-year compliance period.

3 IRC 1400Nc)(6) reads. “…a loan shall not be treated as a below market Federal loan solely by reason of any assistance provided under section 106, 107, or 108 of the Housing and Community Development Act of 1974 by reason of section 122 of such Act or any provision of the Department of Defense Appropriations Act, 2006, or the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006.


This example is based on Rev. Rul. 2004-82, Q&A #6.


Revised October 2009

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