HMD Work Session Boardwalk Hall Tax Credit DecisionHistoric Boardwalk Hall Decision
On August 27, 2012, the Third Circuit Court of Appeals overturned the Tax Court's decision in
Historic Boardwalk Hall (HBH). This is a historic rehabilitation tax credit case, but it has
implications for all transactions in which a developer and an investor share business and tax
benefits.
The Boardwalk Hall case involves the rehabilitation of the convention center where the Miss
America pageant has been held for many years. The convention authority in NJ had started a
$90M rehabilitation of the facility. When it had spent a little more than $50M, an advisor told it
that if the facility was privately owned, it could claim the 20% historic tax credit, and they could
raise another $15 —$20M, which might then fund a large development fee payable to the
convention authority. Pitney Bowes (PB) invested, and the partnership placed the facility in
service and claimed the credit, allocating 99.9% of it to PB. The parties also arranged for a 3%
priority cash return, as well as guarantees of many benefits and cash flow to be provided to PB.
On audit, the IRS disallowed the allocation of the tax credit to PB, primarily contending that the
lack of any upside or downside for the investor meant it was not a partner for tax purposes. The
dispute went to Tax Court, and last year, that court held for the taxpayer in a very favorable
decision.
The Third Circuit Court of Appeals has now reversed the Tax Court's decision, finding that PB
was not a partner, so that it could not be allocated the tax credits.
Whether PB was a partner turned on whether it had any meaningful stake in the success or
failure in the rehabilitation of the facility. While the court considered all the facts surrounding
the investment, it appears that there were several reasons why the court found against the
taxpayer (i) the deal was already going forward and adequately funded when the convention
authority was persuaded to add the HTC and the corresponding fees; (ii) the parties referred to a
"sale" of credits; (iii) the return to PB was guaranteed by both the well - funded convention
authority and a guaranteed investment contract; indeed, the advisor compared the return to
interest payments on a debt instrument; (iv) PB's investments were timed to come in only when
there was no risk that the credit wouldn't be obtained; and (v) on account of debts and fees, PB
had virtually no chance of getting any "upside" beyond its preferred cash distribution.
The decision is based on the particular facts of the deal and does not provide any "bright line"
factors to conclude that an investor is a partner. However, the decision does present four basic
questions when analyzing the degree of risk/reward an investor needs in order to be considered a
partner:
• How much, and how early, should the investor make its initial investment in the venture?
• What risk - limiting features can be provided to the investor to limit its downside?
• What conditions can the investor impose on further capital contributions?
• What kind of upside should be available to the investor?
Smart Growth Workforce Housing
Creation of the Smart Growth Workforce Housing grant program under the discretionary
policy of the Iowa Finance Authority provides greater opportunity for the City of Dubuque and
its partners to stabilize the community and will prioritize environmentally - sustainable
development and will promote economic development. This grant program was established in
the 2010 legislative session. The program needs funding appropriations to become available
effective in FY14.
Definition
Smart Growth practices are settlement patterns that avert urban sprawl by encouraging more
compact development, greater transit use, and enhanced environmental protection. Workforce
housing is normally defined as housing affordable to households earning between 80 percent
and 120 percent area median income (AMI). Affordable, in the housing industry, means a
household pays no more than 30 percent of its annual income on housing. Smart Growth
Workforce Housing is the combination of these concepts — the development of sustainable,
transit - oriented housing that is affordable for our workforce.
What can our workforce households afford to pay for housing? "The National Housing Act of
1937 created the public housing program... [wherein] a tenant's income could not exceed five to
six times the rent; and by 1940 income limits gave way to the maximum rent standard in which
rent could not exceed 20 percent of income — in practice, the same as the predecessor income
limit standard. Over the decades, that percentage has risen, so that by 1981 the threshold was
set at 30 percent of income. Households that spend over 30 percent of income on housing are
considered cost burdened. Why the increase? Was it truly deemed a more appropriate
benchmark? Or was it simply in response to an increase in housing costs and the
government's inability to subsidize housing for an ever - growing number of struggling
households?
Using the current industry standard of spending up to 30 percent of gross income for gross
housing costs (including tax, insurance, & utilities), workforce households could be expected to
spend the maximum amounts indicated in the table below. Housing markets differ greatly, but
we know that rents run much higher than these net rent levels in many areas; and conversely,
these rents are simply unattainable in other areas like Dubuque due to lower local prevailing
wages. The mortgage levels listed below would service a 30 -year mortgage valued between
$83,000 and $125,000, whereas the current median sale price for homes in Dubuque is
$121,800 — barely within reach for the upper end of our workforce.
Workforce
Households
(Dubuque)
Dubuque
Gross
Annual
Income
Gross
Monthly
Affordable
Net
Affordable
Net
Affordable
Rent
Mortgage
Housing
(w /o utilities)
Pmt.
Cost
(w /o utilities,
tax &
insurance)
80 %AMI
$35,700
$881
$661
$581
120 %AMI
$53,520
$1,321
$991
$872
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Over the past decade, rising housing costs have outpaced the average salary across the United
States — in some areas by two- to five -fold. Many workers in urban areas have dealt with this
discrepancy by living far from their downtown jobs or by living in housing they can't afford.
Unfortunately, the former solution is offset by an increase in transportation costs. And what is
the price we pay for the latter solution? "Families who pay more than 30 percent of their income
for housing are considered cost burdened and may have difficulty affording necessities such as
food, clothing, transportation and medical care." In fact, a full 37% of homeowners and 50%
of renters today are cost burdened.
Fortunately, housing costs in smaller urban and rural areas are often within closer reach for
workforce households. However, in areas where vacancy rates are low— calling for the
production of new units — development of quality housing is financially impossible, as
operational income on the properties is not enough to cover interest payments on the project
mortgage. Low local rent levels, although beneficial for tenants, preclude developers
from creating new units, despite a community's housing shortage. For this reason, many
developers have turned to the LIHTC program to make their projects financially feasible,
whether or not this fulfills the community's particular housing demand.
Meanwhile, the recent economic downturn and housing market woes have combined to create a
new class of workers, forced into the rental market because they do not qualify for a mortgage.
Displaced workers with homes that won't sell, families who've had their homes foreclosed,
young professionals with student loans, and households that might otherwise be able to afford
mortgage payments if only they could come up with the higher requisite down payment
demanded in a tight lending climate — all of these are moving into the rental market. This
creates a rather sudden increase in the demand for rental residential units for households that
are neither wealthy, nor are they eligible for low- income housing.
The creation of affordable housing options for our workforce allows communities to attract and
retain quality employers. If the only housing that developers can afford to produce is intended
for low- income or wealthy households, we should not be surprised to see such a disparity in our
communities' income levels. To have a healthy mix of incomes, we must have housing options
available for all income levels.
In addition to many communities' needs for affordable workforce housing, their efforts at being
sustainable may inadvertently be counterproductive to their housing goal. A recent study from
the Lincoln Institute of Land Policy shows that "the presence of a state smart growth program
was the strongest predictor of increases in owner cost burden" and that "the housing cost
burden for renters was consistently higher than for owners."
The results of this study "indicate that smart growth programs that lack an affordable housing
element have been associated with increases in housing cost burdens ". "These results, coupled
with differences in program design and implementation among states, suggest that if smart
growth programs are to have a positive impact on housing affordability or avert a negative
impact from constraints on the land market, they must explicitly require the production of
housing for low- and moderate - income households, rather than merely plan for it or ignore it
completely. "Simply stated, program design matters."
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