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Guide for Completing Form 8823 - page 91 / 197





91 / 197

5 6

    • U.

      S.C. 3601-3619, has occurred for the project. A finding of discrimination includes an adverse final decision by the Secretary of the Department of Housing and Urban Development, 24 CFR 180.680, an adverse final decision by a substantially equivalent state or local fair housing agency, 42 U.S.C. 3616a(a)(1), or an adverse judgment from a federal court.

  • 7.

    The buildings and low-income units in the project were suitable for occupancy, taking into account local health, safety and building codes (or other habitation standards), and the state or local government unit responsible for making local health, safety, or building code inspections did not issue a violation report for any building or low-income unit in the project. If a violation report or notice was issued by the governmental unit, the owner must attach a statement summarizing the violation report or notice or attach a copy of the violation notice or notice to the annual certification submitted to the state agency. In addition, the owner must state whether the violation has been corrected.

  • 8.

    There has been no change in the eligible basis (as defined in IRC §42(d)) of any building in the project (determined at the end of the first credit year), or if there was a change, the nature of the change (e.g., a common area has become commercial space, or a fee is now charged for a tenant facility formerly provided without charge).

  • 9.

    All tenant facilities included in the eligible basis of any building in the project (such as swimming pools, other recreational facilities, or parking areas, etc.) were provided on a comparable basis without charge to all tenants in the buildings.

  • 10.

    If a low-income unit in the project became vacant during the year, reasonable attempts5 were or are being made to rent that unit (or the next available unit of comparable or smaller size) to tenants having a qualifying income before any units in the project were or will be rented to tenants not having a qualifying income.

  • 11.

    If the income of tenants of a low-income building in the project increased above 140% of the applicable income limit (or 170% for deep rent skewed projects), the next available unit of comparable or smaller size in the building was or will be rented to tenants having a qualifying income. See IRC §42(g)(2)(D)(ii), Treas. Reg. §1.42-15, and chapter 14 for guidance on the available unit rule.

12. An extended low-income housing commitment is in effect including the requirement6 that an owner cannot refuse to lease a unit in the project to an applicant because the applicant holds a voucher or certificate of eligibility under Section 8 of the United States Housing Act of 1937. This requirement is not applicable to buildings receiving allocations before 1990 or bond-financed buildings placed in service before 1990.

See Rev. Rul. 2004-82, 2004-2 C.B. 350, Q&A #9. See IRC §42(h)(6)(B)(iv), effective August 10, 1993.


Revised October 2009

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