Texas Register, Volume 46, Number 38, Pages 5983-6306, September 17, 2021 Page: 6,063
5985-6306 p. ; 28 cm.View a full description of this periodical.
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(a) Authority. This chapter applies to the awarding and allo-
cation by the Texas Department of Housing and Community Affairs
(the Department) of Competitive Housing Tax Credits and the issuance
of Determination Notices for non-Competitive Housing Tax Credits.
The federal laws providing for the awarding and allocation of Compet-
itive Housing Tax Credits and issuance of Determination Notices for
non-Competitive Housing Tax Credits require states to adopt a quali-
fied allocation plan. Pursuant to Tex. Gov't Code, Chapter 2306, Sub-
chapter DD, the Department is assigned responsibility for this activity.
As required by Internal Revenue Code (the Code), 42(m)(1), the De-
partment has developed this Qualified Allocation Plan (QAP) and it has
been duly approved to establish the procedures and requirements relat-
ing 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, Compli-
ance 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 sections
11.1 - 11.4 also apply to non-Competitive Housing Tax Credits. Sub-
chapters 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 lim-
ited to, Chapter 1 of this title (relating to Administration), Chapter 2
of this title (relating to Enforcement), Chapter 10 of this title (relat-
ing to Uniform Multifamily Rules), Chapter 12 of this title (relating
to Multifamily Housing Revenue Bond Rules), Chapter 13 of this ti-
tle (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. Department
staff may, from time to time, make available for use by Applicants in-
formation 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 ac-
curate 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. More-
over, 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 as-
sume 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.(c) Competitive Nature of Program. Applying for Competi-
tive Housing Tax Credits is a technical process that must be followed
completely and correctly. Any person who desires to request any rea-
sonable 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 apply-
ing 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. Govt Code Chapter 2306, Internal Rev-
enue 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 that is required to clarify or explain one or more
inconsistencies; to provide non-material missing information in the
original Application or pre-application; or to assist staff in evaluating
the Application or pre-application that, in the Department staffs
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. If an
Applicant claims points for a scoring item, but provides supporting
documentation that would support fewer points for that item, staff
would treat this as an inconsistency and may issue an Administrative
Deficiency or take action without an Administrative Deficiency which
will result in a correction of the claimed points to align with the
provided supporting documentation.
(3) Affiliate--An individual, corporation, partnership, joint
venture, limited liability company, trust, estate, association, coopera-
tive or other organization or entity of any nature whatsoever that di-
rectly, or indirectly through one or more intermediaries, has Control
of, is Controlled by, or is under common Control with any other Per-
son. All entities that share a Principal are Affiliates.
(4) Affordability Period--The Affordability Period com-
mences as specified in the Land Use Restriction Agreement (LURA)
or federal regulation, or commences on the first day of the Compli-
ance Period as defined by the Code 42(i)(1), and continues through
the appropriate program's affordability requirements or termination
of the LURA, whichever is earlier. The term of the Affordability
Period shall be imposed by the LURA or other deed restriction, and
in some circumstances may be terminated upon foreclosure or deed
in lieu of foreclosure. The Department reserves the right to extend
the Affordability Period for Developments that fail to meet program
requirements. During the Affordability Period, the Department shallPROPOSED RULES September 17, 2021 46 TexReg 6063
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Texas. Secretary of State. Texas Register, Volume 46, Number 38, Pages 5983-6306, September 17, 2021, periodical, September 17, 2021; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1385246/m1/81/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.