ACQUISITION/REHABILITATION: THE 10% RELATED PERSON RULE

James F. Duffy, EsquireNixon Peabody LLP100 Summer StreetBoston, MA 02110-2131(617) 345-1129(866) 947-1697 (fax)jduffy@nixonpeabody.com

HOUSING TAX CREDITS “101”

IPED, INC.

Phoenix, Arizona

February 22-23, 2007

THE RULE

Section 42(d)(2)(B)(iii) of the Code provides that in order to receive acquisition credits the building cannot previously been placed in service by the taxpayer or by a related person.

RELATED PERSON TEST

Section 42(d)(2)(D)(iii)(II) tells you that a “related person” to a taxpayer means 10% or greater common ownership.

Selling Partnership

GP OldLP

Property

Cash

Buying Partnership

NewLP

GP

How do you determine your percentage ownership in a LIHTC Partnership?

LIHTC Partnerships are structured with partners receiving different percentage interests in different items:

- Tax Credits - Cash Flow - Sale/Refinancing Proceeds - Maybe State Tax Credits

The LIHTC industry has prudently decided that if you have a 10% or greater interest in any item in the seller, you have to have less than a 10% interest in all items in the buyer.

Since a developer (GP) tends to have more than a 10% interest in Cash Flow in the old Partnership (the seller), the developer tends to have a 9.9% interest in Cash Flow and in Sale/Refinancing Proceeds in the new Partnership (the buyer).

Not your typical LIHTC business deal if the syndicator/investor has 90.1% of Cash Flow and Sale/Refinancing Proceeds.

So, what typically happens?

- Partnership Management Fee

- Incentive Management Fee

The question is whether or not these fees exceed a reasonable fee which would be paid to a third party service provider performing the same services.

Anything paid (or payable if there were Cash Flow) in excess of a reasonable fee could be reclassified as additional Cash Flow to the General Partner.

And, since we’re already at 9.9% of the Cash Flow going to the General Partner, there’s no room for error.

The risk is the loss of all of the Acquisition Credits if the General Partner is deemed to really have a 10.01% interest in Cash Flow.

Look at these Cash Flow fees to see if they’re “reasonable.”

For instance, would a third party service provider agree to be paid only if there were sufficient Cash Flow at that point in the Cash Flow waterfall?

A Cash Flow fee looks more like a real fee, rather than like a Cash Flow distribution, if it accrues, even if there is no Cash Flow available to pay it currently.

Newer Techniques:

- Higher Property Management Fees– recently saw a property management fee

equal to 14% of gross rental income, with the argument that there were very low rents

– the property manager was affiliated with the General Partner

Purchase Money Notes

- Payable to the selling partnership out of

Cash Flow of the purchasing partnership

- a good appraisal is important

Co-GP to Receive Cash Flow

- Existing GP has 9.9% of Cash Flow and new Co-GP has 70-80% of Cash Flow.

- Need to closely examine the full relationship between the two GPs.

Ground Lease

- to an affiliate of the seller

- appraisal issue

- market rate ground lease

Development Fee for the Rehabilitation

- especially if minimal rehabilitation

- similar issue with fee to an affiliated general contractor for the

rehabilitation work

Some investors are more risk adverse than others, so find out early on what is acceptable.

Also, don’t forget the 10% test from the investor side.

- usually OK to use the same syndicator as long as the ultimate investors don’t cause a 10% problem.

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