[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Notices]
[Pages 48340-48344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23051]
[[Page 48339]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
Statutorily Mandated Designation of Difficult Development Areas for
Section 42 of the Internal Revenue Code of 1986; Notice
Federal Register / Vol. 60, No. 180 / Monday, September 18, 1995 /
Notices
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[[Page 48340]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
[Docket No. FR-3956-N-01]
Statutorily Mandated Designation of Difficult Development Areas
for Section 42 of the Internal Revenue Code of 1986
AGENCY: Office of the Secretary, HUD.
ACTION: Notice.
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SUMMARY: This document provides revised designations of ``Difficult
Development Areas'' for purposes of the Low-Income Housing Tax Credit
(``LIHTC'') under section 42 of the Internal Revenue Code of 1986, and
provides the methodology used by the United States Department of
Housing and Urban Development (``HUD''). The new Difficult Development
Areas are based on FY 1995 Fair Market Rents (``FMRs''), FY 1995 income
limits and 1990 census population counts as explained below. The
corrected designations of ``Qualified Census Tracts'' under section 42
of the Internal Revenue Code published May 1, 1995, at 60 FR 21246
remain in effect.
FOR FURTHER INFORMATION CONTACT: Harold J. Gross, Senior Tax Attorney,
Office of the General Counsel, Department of Housing and Urban
Development, 451 Seventh Street, S.W., Washington, D.C. 20410,
telephone (202) 708-3260, or Kurt G. Usowski, Economist, Division of
Economic Development and Public Finance, Office of Policy Development
and Research, Department of Housing and Urban Development, 451 Seventh
Street, S.W., Washington, D.C. 20410, telephone (202) 708-0426, e-mail
Kurt--G.--Usowski@hud.gov. A telecommunications device for deaf persons
(TDD) is available at (202) 708-9300. (These are not toll-free
telephone numbers.)
Additional copies of this notice are available through HUDUSER at
(800) 245-2691 for a small fee to cover duplication and mailing costs.
This notice is available electronically on the Internet (World Wide
Web) at: gopher://huduser.aspensys.com:73/11/2/d in both downloadable
and screen-readable formats.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Treasury Department and the Internal Revenue Service are
authorized to interpret and enforce the provisions of the Internal
Revenue Code of 1986 (the ``Code''), including the Low-Income Housing
Tax Credit (``LIHTC'') found at section 42 of the Code, as enacted by
the Tax Reform Act of 1986 [Pub. L. 99-514], as amended by the
Technical and Miscellaneous Revenue Act of 1988 [Pub. L. 100-647]; the
Omnibus Budget Reconciliation Act of 1989 [Pub. L. 101-239]; the
Omnibus Budget Reconciliation Act of 1990 [Pub. L. 101-508]; the Tax
Extension Act of 1991 [Pub. L. 102-227]; and as amended and made
permanent by the Omnibus Budget Reconciliation Act of 1993 [Pub. L.
103-66]. The Secretary of HUD is required to designate Difficult
Development Areas by section 42(d)(5)(C) of the Code.
In order to assist in understanding HUD's mandated designation of
Difficult Development Areas for use in administering section 42 of the
Code, a summary of section 42 is provided. The following summary does
not purport to bind the Treasury or the IRS in any way, nor does it
purport to bind HUD as HUD has no authority to interpret or administer
the Code, except in those instances where it has a specific delegation.
Summary of Low Income Housing Tax Credit
The LIHTC is a tax incentive intended to increase the availability
of low income housing. Section 42 provides an income tax credit to
owners of newly constructed or substantially rehabilitated low-income
rental housing projects. The dollar amount of the LIHTC available for
allocation by each state (the ``credit ceiling'') is limited by
population. Each state is allocated credit based on $1.25 per resident.
Also, states may carry forward unused or returned credit for one year;
if not used by then, credit goes into a national pool to be allocated
to states as additional credit. State and local housing agencies
allocate the state's credit ceiling among low income housing buildings
whose owners have applied for the credit.
The credit allocated to a building is based on the cost of units
placed in service as low-income units under certain minimum occupancy
and maximum rent criteria. In general, a building must meet one of two
thresholds to be eligible for the LIHTC: either 20 percent of units
must be rent-restricted and occupied by tenants with incomes no higher
than 50 percent of the Area Median Gross Income (``AMGI''), or 40
percent of units must be rent restricted and occupied by tenants with
incomes no higher than 60 percent of AMGI. The term ``rent-restricted''
means that gross rent, including an allowance for utilities, cannot
exceed 30 percent of the tenant's imputed income limitation (i.e., 50
percent or 60 percent of AMGI). The rent and occupancy thresholds
remain in effect for at least 15 years, and building owners are
required to enter into agreements to maintain the low income character
of the building for an additional 15 years.
The LIHTC reduces income tax liability dollar for dollar. It is
taken annually for a term of ten years and is intended to yield a
present value of either (1) 70 percent of the ``qualified basis'' for
new construction or substantial rehabilitation expenditures that are
not federally subsidized (i.e., financed with tax-exempt bonds or
below-market federal loans), or (2) 30 percent of the qualified basis
for the acquisition of existing projects or projects that are federally
subsidized. The actual credit rates are adjusted monthly for projects
placed in service after 1987 under procedures specified in section 42.
Individuals can use the credit up to a deduction equivalent of $25,000.
This equals $9,900 at the 39.6 percent maximum marginal tax rate.
Individuals cannot use the credit against the alternative minimum tax.
Corporations, other than S or professional service corporations, can
use the credit against ordinary income tax. They cannot use the credit
against the alternative minimum tax. These corporations can also deduct
the losses from the project.
The qualified basis represents the product of the ``applicable
fraction'' of the building and the ``eligible basis'' of the building.
The applicable fraction is based on the number of low income units in
the building as a percentage of the total number of units, or based on
the floor space of low income units as a percentage of the total floor
space in the building. The eligible basis is the adjusted basis
attributable to acquisition rehabilitation, or new construction costs
(depending on the type of LIHTC involved). These costs include amounts
chargeable to capital account incurred prior to the end of the first
taxable year in which the qualified low income building is placed in
service. In the case of buildings located in designated Qualified
Census Tracts or designated Difficult Development Areas, eligible basis
can be increased up to 130 percent of what it would otherwise be. This
means that the available credit also can be increased by up to 30
percent. For example, if the 70 percent credit is available, it
effectively could be increased up to 91 percent.
Under section 42(d)(5)(C) of the Code, a Qualified Census Tract is
any census tract (or equivalent geographic area defined by the Bureau
of the Census) in
[[Page 48341]]
which at least 50 percent of households have an income less than 60
percent of the AMGI. There is a limit on the Qualified Census Tracts in
any Metropolitan Statistical Area (``MSA'') or Primary Metropolitan
Statistical Area (``PMSA'') that may be designated to receive an
increase in eligible basis: all of the designated census tracts within
a given MSA/PMSA may not together contain more than 20 percent of the
total population of the MSA/PMSA. For purposes of HUD designations of
Qualified Census Tracts, all non-metropolitan areas in a state are
treated as if they constituted a single metropolitan area. This Notice
does not redesignate Qualified Census Tracts. The corrected designation
of Qualified Census Tracts published May 1, 1995, at 60 FR 21246
remains in effect. Qualified Census Tracts will not be redesignated
until year 2000 census data become available.
Section 42 defines a Difficult Development Area as any area
designated by the Secretary of HUD as an area that has high
construction, land, and utility costs relative to the AMGI. Again,
limits apply. All designated Difficult Development Areas in MSAs/PMSAs
may not contain more than 20 percent of the aggregate population of all
MSAs/PMSAs, and all designated areas not in metropolitan areas may not
contain more than 20 percent of the aggregate population of all non-
metropolitan counties.
Explanation of HUD Designation Methodology
A. Difficult Development Areas
In developing the list of Difficult Development Areas, HUD compared
incomes with housing costs. HUD used 1990 Census data and the MSA/PMSA
definitions as published by the Office of Management and Budget
(``OMB'') in OMB Bulletin No. 94-07 on July 5, 1994, with the
exceptions described in section C., below. The basis for these
comparisons was the fiscal year (``FY'') 1995 HUD income limits for
Very Low Income households (``VLILs'') and Fair Market Rents (``FMRs'')
used for the section 8 Housing Assistance Payments Program. The
procedure used in making these calculations follows (Note that while
the description of HUD's selection methodology differs from previous
designations of Difficult Development Areas, the methodology is
mathematically equivalent):
1. For each MSA/PMSA and each non-metropolitan county, a ratio was
calculated. This calculation used the FY 1995 two-bedroom FMR and the
FY 1995 four-person VLIL. The numerator of the ratio was the area's FY
1995 FMR. The denominator of the ratio was the monthly LIHTC income-
based rent limit calculated as \1/12\ of 30 percent of 120 percent of
the area's VLIL (where 120 percent of the VLIL was rounded to the
nearest $50 and not allowed to exceed 80 percent of the AMGI in areas
where the VLIL is adjusted upward from its 50 percent of AMGI base).
2. The ratios of the FMR to the LIHTC income-based rent limit
were arrayed in descending order, separately, for MSAs/PMSAs and for
non-metropolitan counties.
3. The Difficult Development Areas are those with the highest
ratios cumulative to 20 percent of the 1990 population of all
metropolitan areas and of all non-metropolitan counties.
B. Application of Population Caps to Difficult Development Area
Determinations
In identifying Difficult Development Areas, HUD applied various
caps, or limitations, as noted above. The cumulative population of
metropolitan Difficult Development Areas cannot exceed 20 percent of
the cumulative population of all metropolitan areas and the cumulative
population of nonmetropolitan Difficult Development Areas cannot exceed
20 percent of the cumulative population of all nonmetropolitan
counties.
In applying these caps, HUD established procedures to deal with how
to treat small overruns of the caps. The remainder of this section
explains the procedure. In general, HUD stops selecting areas when it
is impossible to choose another area without exceeding the applicable
cap. The only exceptions to this policy are when the next eligible
excluded area contains either a large absolute population or a large
percentage of the total population, or the next excluded area's ranking
ratio as described above was identical (to three decimal places) to the
last area selected, and its inclusion resulted in only a minor overrun
of the cap. Thus for both the designated metropolitan and non-
metropolitan Difficult Development Areas there are minimal overruns of
the caps. HUD believes the designation of these additional areas is
consistent with the intent of the legislation. Some latitude is
justifiable because it is impossible to determine whether the 20
percent cap has been exceeded, as long as the apparent excess is small,
due to measurement error. Despite the care and effort involved in a
decennial census, it is recognized by the Census Bureau, and all users
of the data, that the population counts for a given area and for the
entire country are not precise. The extent of the measurement error is
unknown. Thus, there can be errors in both the numerator and
denominator of the ratio of populations used in applying a 20 percent
cap. In circumstances where a strict application of a 20 percent cap
results in an anomalous situation, recognition of the unavoidable
imprecision in the census data justifies accepting small variances
above the 20 percent limit.
C. Exceptions to OMB Definitions of MSAs/PMSAs and Other Geographic
Matters
As stated in OMB Bulletin 94-07 defining metropolitan areas: OMB
establishes and maintains the definitions of the [Metropolitan
Areas] MAs solely for statistical purposes * * * OMB does not take
into account or attempt to anticipate any nonstatistical uses that
may be made of the definitions * * * We recognize that some
legislation specifies the use of metropolitan areas for programmatic
purposes, including allocating Federal funds.
HUD makes exceptions to OMB definitions in calculating FMRs by
deleting counties from metropolitan areas whose OMB definitions are
determined by HUD to be larger than their housing market areas. In
addition, HUD is required by statute to calculate a separate FMR and
VLIL for Westchester County, New York, which OMB includes as part of
the New York, NY PMSA. Thus the following counties are assigned their
own FMRs and VLILs and evaluated as if they were separate metropolitan
areas for purposes of designating Difficult Development Areas.
Metropolitan Area and Counties Deleted
Atlanta, GA--Carrol, Pickens, and Walton Counties.
Chicago, IL--DeKalb, Grundy, and Kendall Counties.
Cincinnati-Hamilton, OH-KY-IN--Brown County, Ohio; Gallatin, Grant, and
Pendleton Counties in Kentucky; and Ohio County, Indiana.
Dallas, TX--Henderson County.
Lafayette, LA--St. Landry and Acadia Parishes.
New York, NY--Westchester County.
New Orleans, LA--St. James Parish.
Washington, DC-MD-VA-WV--Clarke, Culpeper, King George, and Warren
Counties in Virginia; and Berkeley and Jefferson Counties in West
Virginia.
Affected MSAs/PMSAs are assigned the indicator ``(part)'' in the list
of Metropolitan Difficult Development Areas.
Finally, in the New England states (Connecticut, Maine,
Massachusetts, New Hampshire, Rhode Island, and Vermont) OMB defines
MSAs/PMSAs according to county subdivisions or Minor Civil Divisions
(``MCDs'') rather than county boundaries. Thus, when a
[[Page 48342]]
New England county is designated as a Nonmetropolitan Difficult
Development Area, only that part of the county (the group of MCDs) not
included in any MSA/PMSA is the Nonmetropolitan Difficult Development
Area. Geographic definitions of the nonmetropolitan parts of New
England counties can be found in HUD's Rule establishing FY 1995 FMRs
at 60 FR 42230 or 24 CFR Part 888. Affected counties are assigned the
indicator ``(part)'' in the list of Nonmetropolitan Difficult
Development Areas.
Future Designations
Difficult Development Areas are designated annually as updated
income and FMR data become available. Qualified Census Tracts will not
be redesignated until year 2000 census data become available.
Effective Date
The list of Difficult Development Areas is effective for
allocations of credit made after December 31, 1995. In the case of a
building described in Internal Revenue Code section 42(h)(4)(B), the
list is effective if the bonds are issued and the building is placed in
service after December 31, 1995. The corrected designations of
Qualified Census Tracts published May 1, 1995, at 60 FR 21246 remain in
effect.
Other Matters
Environmental Impact
In accordance with 40 CFR 1508.4 of the CEQ regulations and 24 CFR
50.20 of the HUD regulations, the policies and actions in this document
are determined not to have the potential of having a significant impact
on the quality of the human environment and therefore further
environmental review under the National Environmental Policy Act is not
necessary.
Regulatory Flexibility Act
In accordance with 5 U.S.C. Sec. 605(b) (the Regulatory Flexibility
Act), the undersigned hereby certifies that this notice does not have a
significant economic impact on a substantial number of small entities.
The notice involves the designation of ``Difficult Development Areas''
for use by political subdivisions of the States in allocating the LIHTC
as required by section 42 of the Code, as amended. This notice places
no new requirements on the States, their political subdivisions, or the
applicants for the credit. This notice also details the technical
methodology used in making such designations.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this notice will not have any substantial direct effects
on States or their political subdivisions, or the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. As a
result, the notice is not subject to review under the order. The notice
merely designates ``Difficult Development Areas'' for use by political
subdivisions of the States in allocating the LIHTC as required by
section 42 of the Code, as amended. The notice also details the
technical methodology used in making such designations.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this notice does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
Order. The notice involves the designation of ``Difficult Development
Areas'' for use by political subdivisions of the States in allocating
the LIHTC as required by section 42 of the Code, as amended. The notice
also details the technical methodology used in making such
designations.
Dated: September 11, 1995.
Henry G. Cisneros,
Secretary.
IRS Section 42(d)(5)(C) Difficult Development Areas--Metropolitan Areas
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State Metropolitan area Metropolitan area Metropolitan area Metropolitan area
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AZ Yuma, AZ.
CA Chico-Paradise, CA...... Los Angeles Long Beach, Salinas, CA............. San Francisco, CA.
CA.
San Luis Obispo- Santa Barbara-Santa Santa Cruz-Watsonville, Santa Rosa, CA
Atascadero-Paso Robles, Maria Lompoc, CA. CA.
CA.
Ventura, CA. ........................
CT Bridgeport, CT.......... New Haven-Meriden, CT... Stamford-Norwalk, CT.... ........................
FL Daytona Beach, FL....... Fort Lauderdale, FL..... Fort Myers-Cape Coral, Fort Pierce-Port Lucie,
FL. FL.
Miami, FL............... Punta Gorda, FL......... Sarasota-Bradenton, FL.. West Palm Beach-Boca
Raton, FL.
HI Honolulu, HI. ........................
MA Barnstable-Yarmouth, MA. Fitchburg-Leominster, MA Worcester, MA-CT ........................
ME Portland, ME. ........................ ........................ ........................
NH Portsmouth-Rochester, NH- ........................
ME.
NJ Atlantic-Cape May, NJ... Jersey City, NJ......... Monmouth-Ocean, NJ...... Vineland-Millville-
Bridgeton, NJ.
NY Nassau-Suffolk, NY...... New York, NY (part)..... Newburgh, NY-PA ........................
OR Eugene-Springfield, OR. ........................
PR Aguadilla, PR........... Arecibo, PR............. Caguas, PR.............. Mayaguez, PR.
Ponce, PR............... San Juan-Bayamon, PR. ........................
RI Providence-Fall River- ........................
Warwick, RI-MA..
SC Myrtle Beach, SC. ........................
TX Brownsville-Harlingen- El Paso, TX............. Laredo, TX ........................
San Benito, TX.
WA Bellingham, WA.......... Yakima, WA..............
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IRS Section 42(d)(5)(C) Difficult Development Areas--Nonmetropolitan Areas
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State County County County County
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Pacific Islands.
AK Bethel Census Area...... Dillingham Census Area.. Fairbanks North Star Haines Borough.
Borough.
Juneau Borough.......... Ketchikan Gateway Kodiak Island Borough... Lake And Peninsula
Borough. Borough.
Nome Census Area........ North Slope Borough..... Northwest Arctic Borough
AL Coffee County........... Macon County............
AR Baxter County........... Conway County........... Garland County.......... Madison County.
Mississippi County.
AZ Cochise County.......... Coconino County......... Gila County............. Santa Cruz County.
Yavapai County
CA Alpine County........... Amador County........... Calaveras County........ Del Norte County.
Humboldt County......... Imperial County......... Inyo County............. Kings County.
Lake County............. Mariposa County......... Mendocino County........ Mono County.
Nevada County........... Plumas County........... San Benito County....... Sierra County.
Siskiyou County......... Tuolumne. County
CO Eagle County............ Garfield County......... Gilpin County........... Grand County.
La Plata County......... Lake County............. Ouray County............ Pitkin County.
Routt County............ San Miguel County. ........................
CT Litchfield County (part) Middlesex County (part). New London County (part) Windham County (part).
DE Sussex County.
FL Citrus County........... Desoto County........... Franklin County......... Glades County.
Hardee County........... Hendry County........... Highlands County........ Indian River County.
Monroe County........... Okeechobee County....... Taylor County.
GA Bulloch County.......... Butts County............ Camden County........... Dawson County.
Liberty County.......... Union County.
HI Hawaii County........... Kauai County............ Maui County.............
ID Bonner County........... Kootenai County.........
KS Riley County.
KY Adair County............ Bell County............. Estill County........... Floyd County.
Johnson County.......... Lincoln County.......... Morgan County........... Nicholas County.
Perry County............ Pike County............. Pulaski County.
LA Morehouse Parish........ Natchitoches Parish..... Tangipahoa Parish....... Vernon Parish.
West Feliciana Parish.
MA Barnstable County (part) Dukes County............ Franklin County (part).. Hampden County (part).
Hampshire County (part). Nantucket County........ Worcester County (part). ........................
MD St. Mary's County....... Wicomico County.
ME Androscoggin County Aroostook County........ Cumberland County....... Franklin County.
(part).
Hancock County.......... Kennebec County......... Knox County............. Lincoln County.
Oxford County........... Penobscot County (part). Piscataquis County...... Sagadahoc County
Somerset County......... Waldo County (part)..... Washington County....... York County (part).
MO Camden County.
MS Adams County............ Bolivar County.......... Claiborne County........ Coahoma County.
Copiah County........... George County........... Issaquena County........ Lafayette County.
Lauderdale County....... Leflore County.......... Sunflower County........ Tate County.
Washington County....... Yazoo County.
MT Missoula County.
NC Camden County........... Dare County............. Pasquotank County....... Watauga County.
NH Belknap County.......... Carroll County.......... Cheshire County......... Grafton County.
Hillsborough County Merrimack County (part). Rockingham County (part) Strafford County.
(part).
Sullivan County.
NM Chaves County........... Curry County............ Lincoln County.......... Mckinley County.
Quay County............. Rio Arriba County....... San Miguel County....... Taos County.
NV Douglas County.......... Mineral County.......... Pershing County.
NY Clinton County.......... Columbia County......... Cortland County......... Essex County.
Greene County........... Hamilton County......... Jefferson County........ Otsego County.
Schuyler County......... Sullivan County......... Tompkins County......... Ulster County.
OR Clatsop County.......... Coos County............. Curry County............ Deschutes County.
Hood River County....... Jefferson County........ Josephine County........ Klamath County.
Lincoln County.
PA Monroe County........... Northumberland County... Schuylkill County....... Wayne County.
PR All.
RI Newport County (part)... Washington County (part)
SC Beaufort County......... Fairfield County.
SD Faulk County............ Spink County.
TN Haywood County.......... Trousdale County.
TX Aransas County.......... Burleson County......... Camp County............. Gillespie County.
Hopkins County.......... Hudspeth County......... Jasper County........... Kerr County.
Kimble County........... Kleberg County.......... Llano County............ Nacogdoches County.
Polk County............. Rains County............ Red River County........ Robertson County.
Tyler County............ Val Verde County........ Van Zandt County........ Walker County.
Washington County.
UT Daggett County.......... Iron County............. Washington County
VA Caroline County......... Cumberland County....... Frederick County........ King And Queen County.
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Madison County.......... Orange County........... Shenandoah County....... Westmoreland County.
VI Virgin Islands.
VT Addison County.......... Bennington County....... Lamoille County......... Orange County.
Rutland County.......... Washington County....... Windham County.......... Windsor County.
WA Clallam County.......... Douglas County.......... Grays Harbor County..... Jefferson County.
San Juan County......... Skagit County.
WV Greenbrier County....... Harrison County......... Taylor County........... Upshur County.
WY Teton County.
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[FR Doc. 95-23051 Filed 9-15-95; 8:45 am]
BILLING CODE 4210-32-P
