Texas Register, Volume 38, Number 47, Pages 8313-8478, November 22, 2013 Page: 8,411
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vide written notice of their intention to terminate or renew their
current lease, or the date a qualified household occupies the unit
as long as the Fair Housing Disclosure Notice is provided to the
new household. "
STAFF RESPONSE: Staff does not agree that providing the no-
tice to a new household corrects the noncompliance of not pro-
viding the notice to the previous household. Staff does not rec-
ommend any change based on this comment.
2. 10.613(k) and (I)
COMMENT SUMMARY: Commenter (4) requested these sub-
sections (which relate to providing residents notice about re-
quired amenities and services) be deleted in their entirety. The
commenter suggested these subsections are unnecessary and
should be deleted because: (1) residents are notified of the pres-
ence of amenities and services through the property's market-
ing; (2) TDHCA already monitors to ensure that residents are
aware of and are using supportive services; and (3) because
new households are presented with excessive paperwork and
the highly-technical language of the required notice would be
more paperwork and confusing.
STAFF RESPONSE: Not all properties identify their amenities
and services in their marketing materials. The Department's cur-
rent monitoring scope does not test to ensure that residents are
"aware" of the availability of services. Staff disagrees that the
language in the notice will be highly technical or that it should not
be provided because households are already presented with pa-
perwork. Staff does not recommend any change based on this
comment.
3. 10.614(a)
COMMENT SUMMARY: Commenter (3) suggested the following
language for 10.614(a):
"(a) ....The rent, plus all mandatory fees, plus an allowance for
those utilities paid by the resident directly to a utility provider,
must be less than or equal to the allowable limit...."
STAFF RESPONSE: Staff agrees. The change is included in the
rule.
4. 10.614(i)
COMMENT SUMMARY: Commenter (5) stated that subsection
(i) contradicts the timing requirements referenced in 10.614(a).
In addition, the commenter states that there is no provision in
Treasury Regulation 1.42-10 or the IRS Audit Guide for com-
paring allowances from one methodology to another. The com-
menter suggests that this will lead to subjectivity and that the
Department is overstepping the IRS rules.
STAFF RESPONSE: Staff disagrees. The commenter points out
that subsection (a) indicates that a written local estimate can
be effective 90 days after the letter is received from the utility
provider and that subsection (i) states that changes to a util-
ity allowance based on a written local estimate can be imple-
mented 90 days after the request was submitted to the Depart-
ment. Owners are required to send the written local estimate
into the Department for review upon receipt. Therefore, if the
owner complies with that requirement, the allowance can be im-
plemented 90 days after the letter is received from the utility
provider. However, if an owner does not comply and fails to
send the letter into the Department upon receipt from the util-
ity provider, then it will not be effective until the Department and
the residents have been provided 90 days to review and com-
ment.Regarding the comment related to subjectivity and overstepping
the IRS rules, staff requested that the IRS review this proposed
rule and they responded: "We think yourproposed rules are con-
sistent with 1.42-10. Under 1.42-10(c)(1), an Agency may re-
quire additional information from the owner. There would be little
need for that rule if the Agency could not deny a utility allowance
for being unreasonable. Furthermore, the proposed submeter-
ing regulations, which were published in the Federal Register on
Aug. 7, 2012, states that a 'commentator asked whether State
housing agencies are allowed to disapprove of certain methods
for determining utility allowances listed in 1.42-10(b) (4) (ii). Ex-
isting rules address the role of State housing agencies in de-
termining utility allowances. Thus, depending on the particular
method under 1.42-10(b) (4) (ii), State housing agencies may re-
quire certain information before a method can be used, or they
may disapprove use of a method. "'
No change is recommended based on this comment.
5. 10.614(l)
COMMENT SUMMARY: Commenter (5) commented that the
Treasury Regulation 1.42-10 only requires the letter from the
provider; no back up is required. Further the commenter stated
"How calculations are made is proprietary to the provider."
STAFF RESPONSE: As noted above, an Agency may require
additional information from an owner. Commenter (5) is not a
utility provider. No utility providers have indicated that the basis
for their calculation is proprietary. Staff does not recommend any
change based on these comments.
6. 10.614(m)
COMMENT SUMMARY: Commenter (5) asked "Why is this new
layer of approval being put on the owners when it is not re-
quited (required) [sic] in either Treasury Regulation 1.42-10 or
the 8823 guide?"
STAFF RESPONSE: Section 10.614(m) requires owners that
would like to use the HUD Utility Schedule Model, the Written
Local Estimate or the Energy Consumption Model at initial lease
up to obtain approval. Because the first year of the credit pe-
riod is so critical, and noncompliance with the utility allowance
is a systematic issue that can affect all the units as opposed to
just one or a few, staff requires preapproval for these methods
which, in our experience are more likely to be miscalculated than
other methods. A utility allowance based on the Public Housing
Authority schedule is the method that owners and managers are
most familiar with and is less likely to be miscalculated. Owners
of HUD regulated buildings or buildings assisted through Rural
Development have an extra layer of review of their allowance
from the other funding source. However, all owners may also
request that the Department review and approve prior to initial
lease up. Staff does not recommend any change based on this
comment.
7. 10.614(n)
COMMENT SUMMARY: Commenter (5) commented "The
owner has met their obligations by paying for the utility al-
lowance to be prepared, notifying the residents and submitting
to TDHCA for approval. Treasury Regulation 1.42-10(c) makes
no provision for the owner to bear the cost of the review and
approval by TDHCA or any other agency. In the case of the
Energy Consumption Model the owner has already borne the
cost of a licensed professional engineer to prepare and seal the
allowance. Should the Department choose to outsource review
why should the owner be penalized?"ADOPTED RULES November 22, 2013 38 TexReg 8411
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Texas. Secretary of State. Texas Register, Volume 38, Number 47, Pages 8313-8478, November 22, 2013, periodical, November 22, 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth379965/m1/99/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.