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Presentation, discussion, and possible action on a request for return and reallocation of tax credits under 10 TAC §11.6(5) related to Credit Returns Resulting from Force Majeure Events for Park at Dogwood
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RECOMMENDED ACTION
recommendation
WHEREAS, the above listed development was awarded 9% housing tax credits during the 2024 competitive Application round;
WHEREAS, staff executed a Carryover Allocation Agreement with the Development Owner, which included certifications from the Development Owner that each building for which the allocation was made would be placed in service by December 31, 2026;
WHEREAS, the Department received a request from the Development Owner to extend the placement in service deadline under the provisions of 10 TAC §11.6(5) related to Credit Returns Resulting from Force Majeure Events;
WHEREAS, other than in situations covered by force majeure, the Department lacks authority to extend federal deadlines for placement in service; and
WHEREAS, the Development Owner has presented evidence that relief under force majeure is appropriate.
NOW, therefore, it is hereby
RESOLVED, the requests for treatment under an application of the force majeure rule are approved, with the 2024 Qualified Allocation Plan and Uniform Multifamily Rules, and the 2025 Program Calendar applicable to the Development.
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BACKGROUND
An award of Competitive (9%) Housing Tax Credits was approved by the Board for the above-listed development in 2024. Staff executed a Carryover Allocation Agreement with the Development Owner which included a certification from the Development Owner that documentation for the 10% Test would be submitted by a set date, and, in order to satisfy the requirements of §42 of the Internal Revenue Code, each building for which the allocations were made would be placed in service by December 31, 2026. The Department received a request from the Development Owner to extend the placement-in-service deadline under the provisions of 10 TAC §11.6(5) related to Credits Returns Resulting from Force Majeure Events. Staff determined that this effective “extension” of the 10% Test deadline due to Force Majeure events was appropriate under these circumstances.
Per 10 TAC §11.6(5) of the Qualified Allocation Plan (QAP), related to Credits Returns Resulting from Force Majeure Events, a Development Owner is allowed to return issued credits within three years of award, and have those credits re-allocated to the Development outside of the usual regional allocation system if all of the requirements of the subsection are met. Per 10 TAC §11.6(5), the Department’s Governing Board may approve the execution of a current program year Carryover Allocation Agreement regarding the returned credits with the Development Owner that returned such credits only if:
(A) The credits were returned as a result of "Force Majeure" events that occurred before issuance of Forms 8609. Force Majeure 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 direct 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 Majeure events must make construction activity impossible or materially impede its progress.
The Development Owner has communicated to staff the specific challenges that impacted construction timelines and their ability to meet the 10% test and Placed-in-Service deadlines.
Park at Dogwood is an 85-unit Development to be completed in New Braunfels, Comal County. The project was awarded Housing Tax Credits in 2024 and must place into service by December 31, 2026. At the time of Application submission, 4% of the Development site was shown by FEMA as being in the AE floodplain. In May 2024 these maps were unexpectedly updated and increased the floodplain coverage to 70%. As a result, the City of New Braunfels is now requiring: completion of a grading plan to prove there will be “no-rise” impact to the floodplain, a hydraulic study report, preparation of elevation certificates for all proposed buildings, and submission and approval of a FEMA CLOMR application. The owner also must acquire $612,000 worth of dirt to increase the elevation of the buildings. The Applicant states that the earliest these steps could be completed and permits received is October 2025. The additional time needed to accommodate these extra steps extends past the 10% test deadline and will not allow sufficient time to complete construction by the Placed-in-Service deadline.
Staff has determined there is sufficient evidence of “sudden and unforeseen circumstances outside the control of the Development Owner . . . [regarding] supplier failures; or materials or labor shortages,” as described in 10 TAC §11.6(5), for the Department to treat the Development under an application of the force majeure rule. If the Board approves the request to consider these force majeure events, the Development Owner will return the awarded credits and execution of a 2024 Carryover Allocation Agreement will result in a new award and a new placed-in-service deadline of December 31, 2027, for the Development, with a new 10% Test deadline of July 1, 2025. The 2024 Qualified Allocation Plan and Uniform Multifamily Rules will be applicable to the Development for the purposes of the force majeure event.
If the Board denies the requests regarding the force majeure events, the date by which the denied Development must be placed in service will remain as previously agreed. Because the Development Owner had anticipated not meeting the placed-in-service deadline, the credits are expected to be returned. If the Development Owner returns the credits, the credits would first be made available in the subregions from which they were originally awarded, pursuant to 10 TAC §11.6(2), related to returned credits. If there are pending Applications on the 2024 or 2025 (depending on when the credits are returned) waiting list from the relevant subregions, the next Application would be awarded, assuming there are enough credits to make the award. If there are not enough credits in the subregion to make an award, the credits will go into the statewide collapse and contribute the next award.
Staff recommends the Board approve the requests for treatment under an application of the force majeure rule for the Development.