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Guide for Completing Form 8823 - page 111 / 197





111 / 197

Also, gross rent for each low-income unit cannot exceed (1) 30% of the AMGI applicable to the unit, and (2) 50% of the average gross rent for market rate units of comparable size in the project.

Irrevocable Elections

Once made, the minimum set-aside and deep-rent skewing elections are irrevocable.3 Thus, the applicable minimum set-aside, deep-rent skewing, and the corresponding rent restrictions apply for the duration of the 15-year compliance period.

Assistance Provided Under HOME *and NAHASDA4*

*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 and Assistance and Self- Determination Act (NAHASDA) of 1996* 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).5 The units used to satisfy the rules under IRC §42(i)(2)(E)(i) also count toward the project’s minimum set-aside under IRC §42(g)(1).

*NOTE: IRC §42(i)(2)(E) was removed from the Code under section 3002(b)(2)(C) of the Housing Assistance Tax Act of 2008 and is not applicable to buildings placed in service after July 30, 2008.*

Suitability for Occupancy

For purposes of computing the minimum set-aside, the low-income units must be physically maintained in a manner suitable for occupancy under IRC §42(i)((3)(B)(ii). See chapter 6 for complete discussion.

Example 1: Vacant LIHC Rental Unit Suitable for Occupancy at the End of the Taxable Year Within the Compliance Period

The owner of a 100% LIHC building elected the 40/60 minimum set-aside and placed the building in service in July of 2003; 2003 is the first year of the credit (and compliance) period. An income- qualified tenant moved into a unit in October 2003 and moved out in November of 2004. The unit was cleaned and ready for occupancy on December 1, 2004. The unit is in compliance as of the end of the of the owner’s 2004 taxable year and is, therefore, included in the count of qualified low-income units to determine whether the minimum set-aside requirement is satisfied.

Vacant Units

A rental unit is considered an LIHC unit beginning on the date that the first qualified tenant moved in and continues to be eligible for the LIHC even though it is vacant if the character of the last household to inhabit the unit qualified as a low-income household. Unless a specific noncompliance issue is identified for the unit, qualifying units that are vacant at the end of the owner’s taxable year of the credit (and compliance) period are included in determining that the minimum set-aside has been met.


4 5

In rare circumstances the IRS has granted an owner an extension of time to make the correct election. The owner must request a private letter ruling and receive express permission to do this. See Rev. Rul. 2004-82, Q&A #6. The designation is shown on Form 8609 (beginning with the Nov. 2003 revision. Line 6f is completed by the state agency.


Revised 10-2009

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