BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2842


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          Date of Hearing:  April 27, 2016


               ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT


                                  David Chiu, Chair


          AB 2842  
          (Thurmond) - As Amended April 12, 2016


          SUBJECT:  Workforce Housing Tax Credit Pilot:  property taxes:   
          income taxes:  insurance taxes:  credits:  low-income housing:   
          sale of credit


          SUMMARY:  Authorizes $100 million in state workforce housing tax  
          credits for qualified buildings that serve households between  
          60% and 80% of the area median income (AMI) in twelve counties  
          with the highest fair market rents in the state as determined by  
          the U.S. Department of Housing and Urban Development (HUD).    
          Specifically, this bill:  


          1)Defines "low-income household" to mean a household with an  
            income that is greater than 60% of AMI but not higher than 80%  
            of AMI. 


          2)Expands the property tax welfare exemption to include an owner  
            of a property that is eligible for and receives a workforce  
            housing tax credit for housing units with an income that is  
            greater than 60% of AMI but not higher than 80% of AMI.


          3)Creates a state workforce housing tax credit for qualified  
            low-income buildings for households with incomes that are  








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            greater than 60% of AMI but not higher than 80% of AMI.


          4)Provides that the workforce housing tax credit will be equal  
            to 20% of the project's unadjusted allocated basis not to  
            exceed $50,000 per unit. 


          5)Defines a "qualified low-income building" to mean a building  
            that is eligible for and can qualify for federal Low-Income  
            Housing Tax Credits (LIHTC) except that all of the following  
            apply:


             a)   Eligible projects are either acquisition or substantial  
               rehabilitation of a building that is at least 20 years old  
               or is a new development;


             b)   No more than 50% of the units in a project are eligible  
               for state LIHTC;


             c)   Prohibits workforce housing tax credit from being used  
               to supplant existing affordable housing units that are not  
               eligible for a workforce housing tax credit including any  
               units where the income of the household is less than 80% of  
               AMI and the rent of the existing unit is a at least 20%  
               below market rate at the time the tax credit is allocated;


             d)   At least 40% of the units in a project are for  
               households with incomes that are greater than 60% of AMI  
               but not higher than 80% of AMI.


             e)   A project is located in one of twelve counties that HUD  
               has identified as having the highest fair market rents in  
               the state. 








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          1)Requires Tax Credit Allocation Committee (TCAC) to post on its  
            Internet Web site annually the counties that can qualify for  
            the workforce housing tax credit. 


          2)Provides that a taxpayer does not have to have currently or  
            previously been allocated a federal LIHTC in order to be  
            allocated a workforce housing tax credit. 


          3)Provides that a taxpayer that is allocated a workforce housing  
            tax credit can also be allocated a state or federal LIHTC. 


          4)Prohibits a workforce housing tax credit from being allocated  
            to a taxpayer that received a federal LIHTC for units with a  
            household income that is greater than 60% of AMI.   


          5)Requires an applicant for a workforce housing tax credit to  
            demonstrate to TCAC that in the city in which the project is  
            located that the area median income for the average rental  
            unit is above the area median income for the project.  


          6)Provides that if a taxpayer does not use the entire workforce  
            housing tax credit in the first year it can be carried over to  
            the following year and for up to fourteen years if necessary  
            until the credit is exhausted.


          7)Allows a workforce housing tax credit to credits to be taken  
            over four years like a state LIHTC.  


          8)Requires housing units funded using the workforce housing tax  
            credit must be provided at an affordable rate or at  








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            substantially below-market rate for 55 years in the same  
            manner as LIHTC housing units.


          9)Requires workforce housing tax credit to be allocated on a  
            first-come-first served basis.  


          10)Requires TCAC to report the following information to the  
            Legislature once all the credits are allocated: 


             a)   The total number of units for which the tax credits were  
               allowed;


             b)   The geographic areas of the tax credit allocations; and 


             c)   A recommendation as to whether the tax credits should  
               continue to be allowed. 


          1)Allows a taxpayer to make an irrevocable election to sell all  
            or any portion of the workforce housing tax credit to an  
            unrelated party, provided that the consideration received by  
            the taxpayer from the sale of the workforce housing tax credit  
            equals at least 80% of the credit amount.


          2)Requires the taxpayer to report to the TCAC, within 10 days of  
            the sale of the credit, certain specified information  
            regarding the purchase and sale of the credit, as provided by  
            the TCAC.  


          3)Requires TCAC to provide an annual listing to the Franchise  
            Tax Board (FTB), in a form and manner agreed upon by TCAC and  
            FTB, of the taxpayers that have sold or purchased a workforce  








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            housing tax credit. 


          4)Applies to projects that receive a preliminary reservation  
            beginning on or after January 1, 2017. 


          5)Prohibits a sale of the workforce housing tax credit to more  
            than one unrelated party or a re-sale of the credit by the  
            unrelated party to another taxpayer or party. 


          6)Specifies that the taxpayer that originally received the  
            workforce housing tax credit will remain solely liable for all  
            obligations and liabilities imposed on the taxpayer by law  
            with respect to the credit, none of which shall apply to any  
            party to whom the credit has been sold or subsequently  
            transferred. 


          7)Disallows a sale of a workforce housing tax credit if the  
            taxpayer was allowed the credit on any of his/her tax returns.  



          8)Allows the taxpayer who has made an election to sell a  
            workforce housing tax credit, with the approval of the  
            Executive Director of TCAC, to rescind this election if the  
            consideration for the credit falls below 80% of the amount of  
            the credit after TCAC reservation. 


          9)Authorizes FTB to prescribe rules, guidelines, or procedures,  
            as specified. 


          10)Requires TCAC to enter into an agreement with FTB to pay any  
            costs incurred by FTB in the administration of the workforce  
            housing tax credit that was sold.  








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          11)Repeals the sunset date, thus making permanent the provisions  
            allowing the state workforce housing credit to be allocated  
            within the partnership agreement differently than federal  
            LIHTC credits. 


          12)Takes effect immediately as a tax levy. 


          EXISTING LAW:  


          1)Allows a state tax credit for costs related to construction,  
            rehabilitation, or acquisition of low-income housing.  This  
            credit, which mirrors a federal LIHTC credit, may be used by  
            taxpayers to offset the tax under the Personal Income Tax  
            (PIT), the Corporation Tax (CT), and the Insurance Tax (IT)  
            laws. 

          2)Requires the California TCAC to allocate each year the  
            California LIHTC credits based upon qualifications of the  
            applicant and proposed project.  The California LIHTC credit  
            is available only to projects that have received an allocation  
            of the federal LIHTC credit.  

          3)Limits the annual aggregate amount of the state LIHTC credit  
            to $70 million, as adjusted for an increase in the California  
            consumer price index from 2002, plus any unused LIHTC credits  
            for the preceding calendar year and any LIHTC credits returned  
            in the calendar year.  The California LIHTC credit awarded may  
            be claimed as a credit against tax over a four-year period.


          4)Requires TCAC to certify the amount of tax credit allocated.   
            In the case of a partnership or an S Corporation, a copy of  
            the certificate is provided to each taxpayer.  The taxpayer is  
            required, upon request, to provide a copy of the certificate  








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            to the FTB.





          5)Allows, until January 1, 2016, the partnership agreements  
            formed to construct low-income housing projects to allocate  
            the state LIHTC credits to investors in a manner that differs  
            from the proportional allocation of the federal LIHTC credits  
            by disconnecting federal tax rules that apply to partnerships,  
            to which California conforms.  



          6)Authorizes the Legislature to exempt from taxation property  
            used exclusively for religious, hospital, or charitable  
            purposes, as specified.  (California Constitution Article  
            XIII, Section 4(b).) The Legislature has implemented this  
            "welfare exemption" in R&TC Section 214.  

          7)Exempts low-income housing developments operated by non-profit  
            organizations, as specified.  

          8)Imposes a "certification requirement" on low-income housing  
            owners seeking the welfare exemption.  Specifically, the law  
            requires a project's owner to "[c]ertify that the funds that  
            would have been necessary to pay property taxes are used to  
            maintain the affordability of, or reduce rents otherwise  
            necessary for, the units occupied by lower income households."  
             

          FISCAL EFFECT:  Unknown. 2/3 vote. 


          COMMENTS: 


           Background  :  In 1986, the federal government authorized the  








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          LIHTC program to enable affordable housing developers to raise  
          private capital through the sale of tax credits to investors.  
          Two types of federal tax credits are available and are generally  
          referred to as nine percent (9%) and four percent (4%) credits.  
          In 1987, the legislature authorized a state LIHTC program to  
          augment the federal tax credit program. State tax credits can  
          only be awarded to projects that also receive federal LIHTCs,  
          except for farmworker housing projects, which can receive state  
          credits without federal credits.   Investors can claim the state  
          credit over four years. TCAC has authority for approximately $70  
          million in state tax credits each year.  Projects that receive  
          either state or federal tax credits are required to maintain the  
          housing at affordable levels for 55 years.  


           TCAC administers the programs and awards credits to qualified  
          developers who do not have sufficient tax liability to use the  
          credits themselves so they sell those credits to private  
          investors who use the credits to reduce their federal or state  
          tax liability. The developer in turn invests the capital into  
          the affordable housing project.  Under current law, investors  
          must become an owner of the property to claim the credits.  


           New state workforce housing tax credit:  This bill would create a  
          $100 million workforce housing tax credit for housing units with  
          an income that is greater than 60% of AMI but not higher than  
          80% of AMI. The amount of credits that a workforce unit could  
          receive would not exceed $50,000 per unit. The credits would be  
          awarded on a first-come-first-serve basis to developers. The  
          credits would only be available in twelve counties that HUD has  
          identified as having the highest fair market rents in the state.  
          Currently those counties are: Contra Costa, Napa, Marin,  
          Monterey, Orange, San Diego, San Francisco, San Mateo, Santa  
          Barbara, Santa Clara, and Ventura. 


          Federal credits can only be awarded to projects that serve  
          households that make up to 60% of AMI. State credits are paired  








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          with federal credits to so that developers can generate enough  
          equity to finance a project.  The new workforce housing credit  
          proposed by this bill would be unable to leverage federal tax  
          credits; it's unclear whether developers would be able to  
          generate enough additional subsidies to reduce the rents of  
          these units to reach between 60% and 80% of AMI. 


           The Welfare Exemption for low-income housing developments  :   
          Article XIII, Section 4(b) of the California Constitution  
          authorizes the Legislature to exempt from taxation property used  
          exclusively for religious, hospital, or charitable purposes, as  
          specified.  The Legislature has implemented this "welfare  
          exemption" in R&TC Section 214.  AB 2144 (Filante), of the  
          1987-88 Regular Session, amended R&TC Section 214 specifically  
          to exempt low-income housing developments operated by non-profit  
          organizations.  As noted in the Senate Revenue and Taxation  
          Committee analysis, AB 2144's proponents argued that the  
          property tax funds then being paid "could better be used in  
          furtherance of the goals of providing low income housing."  

          The owner of a property that receives LIHTC is eligible for a  
          welfare exemption.  The state and federal LIHTC serve households  
          that make 60% of AMI or below.  This bill proposes to create a  
          new workforce housing tax credit program that would finance  
          housing units for households at 60% to 80% of AMI. Because the  
          welfare exemption only applies to the existing LIHTC program the  
          units receiving workforce housing tax credits would not be  
          eligible for the welfare exemption. This bill would add the new  
          workforce housing tax credit as a property eligible for a  
          welfare exemption.      


           Sale of credit to unrelated party  :  This bill would allow a  
          developer who receives an award of state workforce housing  
          credit to sell the credits to an investor without requiring the  
          investor to be part of the ownership entity for the project,  
          typically a limited liability partnership.  A developer could  
          sell the tax credit to one or more unrelated parties if they  








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          received at least 80% of the value of the credit.  Allowing for  
          the sale of workforce housing credits to investors with no  
          ownership in the project will increase the value of the credits.  
           Non-profit affordable housing developers, who do not have the  
          required tax liability on their own, must seek out private  
          equity investments for their developments.  Under current law,  
          investors must become owners of the property to claim the  
          credits against their state tax liabilities.  Due to the fact  
          that state taxes are deductible from federal taxes, a reduction  
          in the state tax liability increases the federal tax liability  
          for the investor.  With the federal corporate tax rate at 35%,  
          investors will generally invest no more than 65 cents for each  
          dollar of state credit.  Allowing a developer who is awarded  
          state credits to sell the credits to an investor without  
          admitting the investor to the ownership partnership will  
          increase the credit closer to one dollar for each dollar of  
          credit.  Last year, SB 377 (Beall) would have allowed the sale  
          of state LIHTC to a third party without an ownership stake in  
          the project. That bill was vetoed by the Governor and the author  
          has reintroduced it this year.


           Purpose of this bill:  According to the author, "All state funds  
          that subsidize the development of multi-family housing are  
          effectively capped at 60% of the Area Median Income (AMI). State  
          programs, as well as federal programs that incent development  
          for units below market rent are capped. And the only existing  
          program which goes to 80% AMI, the Multifamily Housing Program,  
          is an overly-subscribed competitive program where advantage is  
          given for lower-income developments-the implication of which is  
          that no development occurs above 60% AMI. The consequence of  
          this lack of gap-financing is that there are no rent-restricted  
          units developed above 60% AMI which for the most part is  
          justifiably below what the market provides. However, in  
          high-cost metropolitan areas, the free market does not naturally  
          provide housing for many above that income designation. The  
          consequence of this lack of investment has been the displacement  
          of vital workers, many workers whom, despite their contribution  
          to the community, cannot live within it-such as healthcare  








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          workers, education professionals, firefighters, and others."





           Related legislation :   AB 2817 (Chiu) increases the allocation  
          of state LIHTC by an additional $300 million and makes changes  
          to the state LIHTC to allow for greater leveraging of 4% federal  
          LIHTC.  This bill passed out of this committee 7-0 and is  
          currently pending hearing in the Assembly Committee on Revenue  
          and Taxation. 





           Policy Issues:


           1)This credit would be awarded on a first-come-first-serve basis  
            rather than on a competitive basis. The committee may wish to  
            consider if the bill should be amended to require the credit  
            be awarded on a competitive basis to encourage the best and  
            highest use of the credit. 


          2)After all the workforce housing tax credits are awarded, TCAC  
            is required to report back to the Legislature on whether the  
            workforce housing tax credits achieved their intended purpose.  
            The committee may wish to require the report to include the  
            number of units that are occupied by qualified low income  
            households at the time the report is completed and how many  
            tenants are paying an affordable rent at the time the report  
            is completed.   


          3)This bill prohibits workforce housing tax credit from being  
            used to replace existing units that are already affordable  








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            housing units including units where the households are making  
            less than low-income and the rents for those units is at least  
            20% below market rate at the time the tax credit is allocated.  
            The intent of this provision may be to prevent the workforce  
            housing tax credit from being used for a naturally occurring  
            affordable unit that is not subsidized. The committee may wish  
            to consider if these protections are strong enough to prevent  
            against the displacement of existing low-income tenants or if  
            these provisions should be strengthened.   Additionally, the  
            bill should include a mechanism for determining the market  
            rate for rent in order to determine if a rent is "below market  
            rent."   


          4)The bill prohibits a housing unit that is financed using  
            workforce housing tax credit to also be financed using federal  
            LIHTC. It unclear why this provision is needed since the  
            workforce housing tax credits are above the income limit for  
            federal LIHTC. 


           Committee amendments:





              1)   Delete the requirement that the workforce housing tax  
               credits be allocated on a first-come-first-served basis. 



             2)   Require the report that must be submitted at the  
               conclusion of the pilot program to include the number of  
               units that are occupied by qualified low income households  
               and how many tenants are paying an affordable rent at the  
               time the report is completed.










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             3)   Add to the definition of a "qualified low-income  
               building" that units funded by the workforce housing tax  
               credit be at least 20% below market rate at the time the  
               tax credit is allocated. 



             4)   Delete the $100 million appropriation in the bill.    



           


          Technical amendments:





           On page 22, line 24, after "(2)," insert "lower"


           


          Double referred:  If AB 2842 passes this committee, the bill will  
          be referred to the Committee on Revenue and Taxation.





          REGISTERED SUPPORT / OPPOSITION:












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          Support


          California Council for Affordable Housing




          Opposition


          None on File




          Analysis Prepared by:Lisa Engel / H. & C.D. / (961) 319-2085