| (a) Authority. This chapter applies to the awarding
and allocation by the Texas Department of Housing and Community Affairs
(the Department) of Competitive Housing Tax Credits, the state Housing
Tax Credit, and the issuance of Determination Notices for non-Competitive
Housing Tax Credits. The federal laws providing for the awarding and
allocation of Competitive Housing Tax Credits and issuance of Determination
Notices for non-Competitive Housing Tax Credits require states to
adopt a qualified allocation plan. Pursuant to Tex. Gov't Code, Chapter
2306, Subchapter DD, the Department is assigned responsibility for
this activity and pursuant to Tex. Gov't Code, Chapters 171 and 233,
the Department is assigned responsibility for the adoption of rules
relating to the State Housing Tax Credit. As required by Internal
Revenue Code (the Code), §42(m)(1), the Department has developed
this Qualified Allocation Plan (QAP) and it has been duly approved
to establish the procedures and requirements relating to an award
and allocation of Competitive Housing Tax Credits and issuance of
Determination Notices for non-Competitive Housing Tax Credits. All
requirements herein and all those applicable to a Housing Tax Credit
Development or an Application under Chapter 10 of this title (relating
to Post Award and Asset Management Requirements, Compliance Monitoring,
and Incomes and Rents rules) collectively constitute the QAP required
by Tex. Gov't Code §2306.67022 and §42(m)(1)(B) of the Code.
Unless otherwise specified, certain provisions in this section and §§11.2
- §11.4 of this title also apply to non-Competitive Housing Tax
Credits and Multifamily Direct Loans. Subchapters B - E of this chapter
also apply to non-Competitive Housing Tax Credits and Multifamily
Direct Loans. Applicants are required to certify, among other things,
that they have familiarized themselves with the rules that govern
that specific program including, but not limited to, Chapter 1 of
this title (relating to Administration), Chapter 2 of this title (relating
to Enforcement), Chapter 10 of this title (relating to Uniform Multifamily
Rules), Chapter 12 of this title (relating to Multifamily Housing
Revenue Bond Rules), Chapter 13 of this title (relating to Multifamily
Direct Loan Rule), and other Department rules. This subchapter does
not apply to operating assistance programs or funds unless incorporated
by reference in whole or in part in a Notice of Funding Availability
(NOFA) or rules for such a program, except to the extent that Developments
receiving such assistance and otherwise subject to this chapter remain
subject to this chapter.
(b) Due Diligence and Applicant Responsibility.
(1) Department staff may, from time to time, make available
for use by Applicants information and informal guidance in the form
of reports and responses to specific questions. The Department encourages
communication with staff in order to clarify any issues that may not
be fully addressed in the QAP, or may be unclear when applied to specific
facts. However, while these resources are offered to help Applicants
prepare and submit accurate information, Applicants should also appreciate
that this type of guidance is limited by its nature, and that staff
will apply the rules of the QAP to each specific situation as it is
presented in the submitted Application. The Multifamily Programs Procedures
Manual is not a rule and is provided as good faith guidance and assistance,
but in all respects the statutes and rules governing the Low Income
Housing Tax Credit program supersede these guidelines and are controlling.
Moreover, after the time that an issue is initially presented and
guidance is provided, additional information may be identified and
the issue itself may continue to develop based upon additional research
and guidance. Thus, until confirmed through final action of the Board,
staff guidance must be considered merely as an aid and an Applicant
continues to assume full responsibility for any actions Applicant
takes regarding an Application. In addition, although the Department
may compile data from outside sources in order to assist Applicants
in the Application process, it remains the sole responsibility of
the Applicant to perform independently the necessary due diligence
to research, confirm, and verify any data, opinions, interpretations,
or other information upon which an Applicant bases an Application
or includes in any submittal in connection with an Application.
(2) Developments with Existing LURAs. Applicants proposing
to submit an Application requesting an award of Housing Tax Credits
or a Direct Loan for a Development that already has a LURA in place
should review the existing LURA(s) on the property to ensure there
are no conflicts with the proposed Application. Where an Applicant
has identified a potential conflict, it is incumbent upon the Applicant
to consult with staff regarding the steps that may be necessary to
resolve the conflicts. This may include, but is not limited to, an
Application amendment or LURA amendment, a waiver, or other action
that may necessitate additional staff time for review or a Board determination.
Depending on the timing constraints associated with the proposed Application,
Applicants should be mindful that resolving issues relating to the
existing LURA and for Direct Loans the existing Contract may not coincide
with the timing needed for a new award if such requests are not submitted
early in the process. A copy of the existing LURA must be included
in the Application.
(c) Competitive Nature of Program. Applying for Competitive
Housing Tax Credits is a technical process that must be followed completely
and correctly. Any person who desires to request any reasonable accommodation
for any aspect of this process is directed to §1.1 of this title
(relating to Reasonable Accommodation Requests to the Department).
As a result of the highly competitive nature of applying for Competitive
Housing Tax Credits, an Applicant should proceed on the assumption
that deadlines are fixed and firm as further provided for in subsection
(f) of this section.
(d) Definitions. The capitalized terms or phrases used
herein are defined below. Any capitalized terms not specifically mentioned
in this section or any section referenced in this document shall have
the meaning as defined in Tex. Gov't Code Chapter 2306, Internal Revenue
Code (the Code) §42, the HOME Final Rule, and other federal or
Department rules, as applicable. Defined terms, when not capitalized,
are to be read in context and construed according to common usage.
(1) Adaptive Reuse--The change-in-use of an existing
building not, at the time of Application, being used, in whole or
in part, for residential purposes, into a building which will be used,
in whole or in part, for residential purposes. Adaptive Reuse requires
that at least 75% of the original building remains at completion of
the proposed Development. Ancillary non-residential buildings, such
as a clubhouse, leasing office, or amenity center may be newly constructed
outside the walls of the existing building or as detached buildings
on the Development Site. Adaptive Reuse Developments will be considered
as New Construction.
(2) Administrative Deficiency--Information requested
by Department staff to clarify, explain, confirm, or restrict the
Development proposal to a logical and definitive plan or to provide
missing information in the original Application or pre-application;
or to assist staff in evaluating the Application or pre-application
that, in the Department staff's reasonable judgment, may be cured
by supplemental information or explanation which will not necessitate
a substantial reassessment or re-evaluation of the Application or
pre-application. Administrative Deficiencies may be issued at any
time while the Application or pre-application is under consideration
by the Department, including at any time after award or allocation
and throughout the Affordability Period. A matter may begin as an
Administrative Deficiency but later be determined to have constituted
a Material Deficiency. Applicants must intend that the pre-Application
or Application is the final version to be reviewed by staff, and should
not rely on the Administrative Deficiency process when applying for
funding.
(A) The following issues will be treated by Department
staff as Administrative Deficiencies that are curable through the
Deficiency process only if the issues, when taken as a whole, do not
constitute a Material Deficiency as defined in §11.1(d) of this
chapter:
(i) For Applications that are substantially complete,
a minor quantity of missing signatures, documents, or similar clerical
matters, the curing of which will not create change within the Application,
unless the missing documentation is required to have existed as of
the appropriate deadline and did not, or is otherwise not susceptible
to resolution. For Competitive HTC or Direct Loan Applications, this
may include documents submitted to substantiate points claimed in
the Application only if:
(I) The documents can be readily identified to have
existed prior to the Full Application Delivery Date (Competitive HTC)
or the Application Acceptance Date (Direct Loan), and the submission
of the documents does not necessitate additional changes in the Application
to qualify for the points; or
Cont'd... |
