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Guide for Completing Form 8823 - page 90 / 197





90 / 197

Chapter 7 Category 11d Owner Failed to Provide Annual Certifications or Provided Incomplete or Inaccurate Certification


This category is used to report owners of low-income housing properties who fail to submit annual certifications, or any other required reports and documentation, to the state agency as described in Treas. Reg. §1.42-5(c). Monitoring procedures require certifications (and state agency reviews of the certifications) at least annually for each year of the 15-year compliance period. Monitoring procedures may require certifications (and state agency reviews) more frequently than annually, provided that all months within each 12-month period are subject to certification.

Owners are responsible for reporting to the state agency annually that their projects were in compliance with IRC §42 for the preceding 12-month period. They must report in the form and manner the state agency specifies and must certify, under the penalty of perjury, that the information provided is true, accurate, and in compliance with the requirements of IRC §42. The owner must certify that:

1. The project met the requirements of the minimum set-aside test applicable to the project; i.e., the 20-50 test, the 40-60 test, or the 25-60 test for New York City. See chapter 10. 1

  • 2.

    If applicable, the 15-40 test under IRC §§42(g)(4) and 142(d)(4)(B) for deep rent skewed projects was met.

  • 3.

    There has been no change in the applicable fraction (as defined in IRC §42(c)(1)(B)) of any building in the project, or that there was a change and a description of the change is included with the certification.

4. The owner has an annual income certification from each low-income tenant (Tenant Income Certification) and documentation to support that certification at initial occupancy and subsequent years during the compliance period. Tenants receiving Section 8 housing assistance payments may satisfy the documentation requirement by submitting a statement provided by a public housing authority (see Treas. Reg. §1.42-5(b)(1)(vii)). For an exception to this requirement, see IRC 42(g)(8)(B) and Rev. Proc. 94-642, or Rev. Proc. 2004-383, which provide rules for 100 percent low-income buildings when the owner has received a waiver from the annual recertification requirements.

5. Each low-income unit in the project was rent restricted.

6. All units in the project were for use by the general public4, including the requirement that no finding of discrimination under the Fair Housing Act, 42

1 2 3 4

See IRC §§42(g)(1)(A) and (B), 42(g)(4), 42(g)(4) and 142(d)(6). Rev. Proc. 94-64, 1994-2 C.B. 797. Rev. Proc. 2004-38, 2004-2 C.B. 10. As defined in Treas. Reg. §1.42-9.


Revised October 2009

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