Texas Register, Volume 46, Number 38, Pages 5983-6306, September 17, 2021 Page: 6,079
5985-6306 p. ; 28 cm.View a full description of this periodical.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
fund the next Application on the waiting list. For credit returned af-
ter September 30, awards from the waiting list will be made when the
remaining balance is sufficient to award the next Application as may
be amended on the waiting list based on the date(s) of returned credit.
Notwithstanding the foregoing, if decisions related to any returns or
rescissions of tax credits are under appeal or are otherwise contested,
the Department may delay awards until resolution of such issues. The
Department will evaluate all waiting list awards for compliance with
requested Set-asides. This may cause some lower scoring Applications
to be selected instead of a higher scoring Application. Where sufficient
credit becomes available to award an Application on the waiting list
later in the calendar year, staff may allow flexibility in meeting the Car-
ryover Allocation submission deadline and changes to the Application
as necessary to ensure to the extent possible that available resources
are allocated by December 31. ( 2306.6710(a) - (f); 2306.111).
(5) Credit Returns Resulting from Force Majeure Events.
In the event that the Department receives a return of Competitive HTCs
during the current program year from an Application that received a
Competitive Housing Tax Credit award during any of the preceding
three years, such returned credit will, if the Board determines that all
of the requirements of this paragraph are met to its satisfaction, be al-
located separately from the current year's tax credit allocation, and not
be subject to the requirements of paragraph (2) of this section. The
2019 and 2020 Applications requesting Supplemental Allocations un-
der Subchapter F of this chapter to address unforeseen cost increases
are deemed to have met the requirements of this paragraph. The Board
determination must indicate the year of the Multifamily Rules to be
applied to the Development. The Department's Governing Board may
impose a deadline that is earlier than the Placed in Service Deadline
and may impose conditions that were not placed on the original al-
location. Requests to allocate returned credit separately where all of
the requirements of this paragraph have not been met or requests for
waivers of any part of this paragraph will not be considered. For pur-
poses of this paragraph, credits returned after September 30 of the pre-
ceding program year may be considered to have been returned on Jan-
uary 1 of the current year in accordance with the treatment described
in (b)(2)(C)(iii) of Treasury Regulation 1.42-14. The Board may ap-
prove the execution of a current program year Carryover Agreement
regarding the returned credits with the Development Owner that re-
turned such credits only if:
(A) The credits were returned as a result of "Force Ma-
jeure" events that occurred before issuance of Forms 8609. Force Ma-
jeure events are the following sudden and unforeseen circumstances
outside the control of the Development Owner: acts of God such as
fire, tornado, flooding, significant and unusual rainfall or subfreezing
temperatures, or loss of access to necessary water or utilities as a di-
rect result of significant weather events; explosion; vandalism; orders
or acts of military authority; unrelated party litigation; changes in law,
rules, or regulations; national emergency or insurrection; riot; acts of
terrorism; supplier failures; or materials or labor shortages. If a Force
Majeure event is also a presidentially declared disaster, the Department
may treat the matter under the applicable federal provisions. Force Ma-
jeure events must make construction activity impossible or materially
impede its progress;
(B) Acts or events caused by the negligent or willful act
or omission of the Development Owner, Affiliate or a Related Party
shall under no circumstance be considered to be caused by Force Ma-
jeure. In order for rainfall, material shortages, or labor shortages to
constitute Force Majeure, the Development Owner must clearly ex-
plain and document how such events could not have been reasonably
foreseen and mitigated through appropriate planning and risk manage-
ment. Staff may use Construction Status reports for the subject or otherDevelopments in conducting their review and forming a recommenda-
tion to the Board.
(C) A Development Owner claiming Force Majeure
must provide evidence of the type of event, as described in subpara-
graph (A) of this paragraph, when the event occurred, and that the loss
was a direct result of the event;
(D) The Development Owner must prove that reason-
able steps were taken to minimize or mitigate any delay or damages,
that the Development Owner substantially fulfilled all obligations not
impeded by the event, including timely closing of all financing and
start of construction, that the Development and Development Owner
was properly insured and that the Department was timely notified of
the likelihood or actual occurrence of an event described in subpara-
graph (A) of this paragraph;
(E) The event prevents the Development Owner from
meeting the placement in service requirements of the original alloca-
tion;
(F) The requested current year Carryover Agreement
allocates the same amount of credit as that which was returned; and
(G) The Department's Real Estate Analysis Division
determines that the Development continues to be financially feasible
in accordance with the Department's underwriting rules after taking
into account any insurance proceeds related to the event.
11. 7. Tie Breaker Factors.
In the event there are Competitive HTC Applications that receive the
same number of points in any given set-aside category, rural regional
allocation or urban regional allocation, or rural or statewide collapse,
the Department will utilize the factors in this section, in the order they
are presented, to determine which Development will receive prefer-
ence in consideration for an award. For the purposes of this section, all
measurements will include ingress/egress requirements and any ease-
ments regardless of how they will be held. The tie breaker factors are
not intended to specifically address a tie between equally underserved
subregions in the rural or statewide collapse.
(1) Applications proposed to be located in a census tract
with a poverty rate below the average poverty rate for all awarded Com-
petitive HTC Applications from the past three years (with Region 11
adding an additional 15% to that value and Region 13 adding an ad-
ditional 5% to that value). The poverty rate for each census tract will
come from the most recent American Community Survey data. If a tie
still persists, then the Development in the census tract with the high-
est percentage of statewide rent burden for renter households at or be-
low 80% Area Median Family Income (AMFI), as determined by the
U.S. Department of Housing and Urban Development's Comprehen-
sive Housing Affordability Strategy (CHAS) dataset and as reflected
in the Department's current Site Demographic Characteristics Report.
(2) Applications proposed to be located the greatest linear
distance from the nearest Housing Tax Credit assisted Development
that serves the same Target Population and that was awarded less than
15 years ago according to the Department's property inventory tab of
the Site Demographic Characteristics Report. Developments awarded
Housing Tax Credits but do not yet have a Land Use Restriction Agree-
ment in place will be considered Housing Tax Credit assisted Devel-
opments for purposes of this paragraph according to the property in-
ventory included in the HTC Site Demographic Characteristics Report.
The linear measurement will be performed from closest boundary to
closest boundary of the Site presented at Pre-Application, if a pre-appli-
cation is submitted, or the Site presented at full Application, whichever
is closest.
11.8. Pre-Application Requirements (Competitive HTC Only).PROPOSED RULES September 17, 2021 46 TexReg 6079
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Periodical.
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/m1/97/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.