Background

On December 30, 2013, the Internal Revenue Service issued its long-awaited historic rehabilitation tax credit guidance in the form of a Revenue Procedure that outlines a safe harbor for allocations of the Code Sec. 47 tax credits to partners in a partnership. The impetus for this guidance grew out of the 2012 3rd Circuit opinion in Historic Boardwalk Hall, LLC v. Commissioner, 694 F.3d 425 (3rd Cir. 2012), cert. denied, U.S., No. 12-901, May 28, 2013. In Boardwalk, the court determined that the tax credit investor’s return from the historic tax credit partnership was effectively fixed and that the investor had no meaningful downside risk. It concluded that the investor “lacked a meaningful stake in either the success or failure” of the partnership and was not a “bona fide partner.” As a result, the allocation of the rehabilitation tax credits to the partner by the partnership was disallowed.

Large corporations, especially financial institutions, had been a significant source of capital investment in historic rehabilitation tax credit transactions because such entities generally were not subject to the Code Sec. 469 passive activity rules, which limit most taxpayers' ability to utilize these credits. The tax credit partnerships had been a way to improve the tax efficiency of the tax credit program. They permitted sponsors that lacked sufficient taxable income to utilize the credits themselves to monetize the tax credits by allocating them to an investor who contributed capital to the development partnership. The Boardwalk decision, and a subsequent IRS Field Attorney Advice (FAA20124002F), blunted the enthusiasm of some traditional tax credit investors for new investments in historic rehabilitation tax credit transactions and caused a number of transactions to be restructured. Taxpayers and industry representatives clamored for guidance from the IRS that would permit historic tax credit transactions to proceed. After a series of delays, guidance finally was issued by the IRS on December 30, 2013 that is applicable to allocations of rehabilitation tax credits to partners made on or after that date. For historic tax credit transactions meeting the conditions of the Rev. Proc. 2014-12 safe harbor, the IRS said that it will not challenge the partnership’s allocation of historic rehabilitation tax credits. Whether that guidance actually will permit historic tax credit transactions to proceed with their pre-Boardwalk vigor remains to be seen.

Although the IRS cautioned that the safe harbor was not intended to provide substantive rules regarding historic tax credits or the validity of partnership allocations that fail to satisfy the safe harbor, practitioners have long viewed pronouncements like the safe harbor in the Revenue Procedure as, effectively, setting forth the IRS view of the substantive rules for transactions encompassed by the Revenue Procedure. The IRS also cautioned that taxpayers should not conclude that the amount of the historic tax credits claimed is otherwise valid even though the partnership agreement meets the safe harbor conditions.

The Revenue Procedure made it clear that the safe harbor applies to the common tax credit models currently in use: (x) the Developer Partnership model, in which the partnership to which the tax credit investor is admitted, owns and rehabilitates the property, and (y) the Master Tenant Partnership model, where the investor is admitted as a member of a Master Tenant Partnership, the Master Tenant Partnership becomes a member of the Developer Partnership in exchange for a contribution of capital representing the agreed value of the tax credits, and a Treas. Reg. §1.48-4(a)(1) election is made by the Developer Partnership to treat the Master Tenant Partnership as having acquired the property.

Requirements of the Safe Harbor

In order to qualify for the protection of the rehabilitation tax credit safe harbor, the transaction must satisfy a series of separate conditions:

The tax credit investor’s permitted interest in the developer partnership is limited.

In the case of transactions following the Master Tenant Partnership model, the tax credit investor generally cannot also own an interest in the Developer Partnership other than through its indirect interest in the Developer Partnership held through the Master Tenant Partnership.

Both the investor and the sponsor must own not less than a minimum percentage interest in each material partnership item of income, gain, loss, deduction and credit.

Sponsor’s Minimum Interest

The sponsor, i.e., the principal or manager in the development entity, must own a minimum 1 percent interest in each material item of partnership income, gain, loss, deduction and credit at all times during the existence of the partnership. This requirement looks back to the historic IRS ruling position regarding the required minimum size of the general partner’s interest in a limited partnership in the days before the check-the-box partnership classification regulations. In addition to decreasing the percentage of the available tax credits that can be allocated to the investor by almost one full percentage point, this condition may require the sponsor to contribute 1 percent of the aggregate capital required by the partnership in order for all of the partnership allocations to meet the 1 percent interest rules.

Investor’s Minimum Interest

The investor must have a minimum interest in each material item of partnership income, gain, loss, deduction and credit equal to 5 percent of the investor’s percentage interest in those items for the taxable year in which the investor’s percentage share is the largest. The investor’s percentage interest in profits usually is at its largest in the taxable year in which the property is placed in service and, under the safe harbor, the largest permitted investor interest would be 99 percent. If the investor has a 99 percent interest in partnership profits for the year in which the rehabilitation tax credits are placed in service, the investors’ share of partnership profits could not be less than 4.95 percent at any subsequent time it holds an interest in the partnership.

Bona Fide Equity Investment

The investor’s partnership interest must be “a bona fide equity investment with a reasonably anticipated value commensurate with the investor’s overall percentage interest in the partnership, separate from any federal, state and local tax deductions, allowances, credits and other tax attributes” (emphasis supplied) to be allocated to the investor. Further, the investor cannot be “substantially protected from losses” from partnership operations and must participate in partnership profits in a manner that is not limited to a preferred return that is in the nature of a payment for its capital investment. The bona fide equity test of the safe harbor requires that the investor own an interest in the partnership having a value separate from the tax credits that otherwise flow through to the investor. This requirement of a real economic interest “with a reasonably anticipated value commensurate with the investor’s overall percentage interest” may represent a meaningful hurdle for some transactions. It is likely to require some restructuring of the economic returns/risk exposures for tax credit transactions in all events.

Fair Market Value Determinations

Under the rules explained below involving puts/calls with respect to the investor’s partnership interest, the exercise price of the investor’s put cannot be less than its fair market value at the time the put is exercised. The safe harbor protects the integrity of this value determination by providing that the value of the investor’s interest cannot be reduced through fees (including developer, management and incentive fees), lease terms or other arrangements that are unreasonable when compared to fees, lease terms or other arrangements for real estate development projects that do not qualify for the historic rehabilitation tax credits. Making fees in non-tax credit transactions the standard for the reasonableness of such fees in tax credit transactions will represent a fundamental shift in the structure of some tax credit transactions where sponsors had relied upon deferred development fees to increase the amount of the credit and shift more of the economic elements of the property of the sponsor. It is likely that the typical deferred development fee in a historic tax credit deal would fail this condition where it was not otherwise a feature of non-tax credit transactions. Further, the partnership cannot have other arrangements designed to reduce the value of the investor’s interest. The Revenue Procedure gives the following as an example of this rule: A sublease of the underlying property from the Master Tenant Partnership to the Developer Partnership or a Principal, which could be used to reduce the profits earned by the Master Tenant Partnership from successfully leasing the property to occupancy tenants, is deemed unreasonable unless the sublease is required by a third-party unrelated to the Principal. Further, the duration of any such sublease must be shorter than the duration of the head lease, and the Master Tenant Partnership may not terminate its lease during the period in which the investor remains a partner in the Master Tenant.

The investor’s contribution must be substantially fixed, and a minimum contribution amount threshold must be met, before the property is placed in service.

The investor must make a minimum, unconditional contribution before the building is placed in service. The minimum contribution amount is set at 20 percent of the investor’s total expected capital contributions and the investor must maintain that minimum throughout the duration of its ownership of its partnership interest. The contribution of an investor promissory note is accounted for at $0 for the purpose of measuring compliance with this condition. Further, at least 75 percent of the investor’s total expected capital contributions must be fixed in amount before the date the building is placed in service.

Limitations on permitted sponsor guarantees.

Although the safe harbor permits certain unfunded guarantees covering the performance of any act needed to claim the Sec. 47 credit, the avoidance of any act that would cause the partnership to fail to qualify for rehabilitation tax credits or would result in a recapture event, and other guarantees not defined as “impermissible” under the safe harbor, e.g., an operating deficit guarantee, it prohibits almost all funded guarantees and all guarantees relating to the allowance or amount of the rehabilitation tax credit (an “impermissible guarantee”). For example, an impermissible guarantee would exist where any person involved in the rehabilitation tax credit transaction directly or indirectly guarantees or otherwise ensures the investor’s ability to obtain the rehabilitation tax credits, the cash equivalent of the credits or the repayment of any portion of the investor’s contribution due to the investor’s inability to claim the rehabilitation tax credits following a challenge by the IRS. Although this requirement does not prevent the investor from purchasing tax credit insurance from persons not otherwise involved in the rehabilitation, it prohibits the type of tax credit indemnity agreements entered into by the sponsor that historically have been a feature of rehabilitation tax credit investments. The prohibition on funded guarantees will negatively impact projects that had established funded operating deficit reserves in lieu of developer operating deficit guarantees because of further restrictions in the safe harbor.

The sponsor may neither make a loan to an investor to enable it to acquire an interest in the Developer Partnership or the Master Tenant Partnership, nor may it guarantee the investor’s acquisition financing.

Put/Call rights

Rehabilitation tax credit transactions historically featured a put option held by the investor and a call option held by the sponsor that became exercisable after the end of the tax credit recapture period. Under the IRS safe harbor, neither the principal nor the partnership is permitted to have a call option or other contractual right or agreement to purchase or redeem the investor’s interest at a future date. That is, the sponsor cannot have a mechanism to force the tax credit investor to relinquish its interest in the partnership. The fact that the exercise price of such a call option may be based on the fair market value of the tax credit investor’s interest is irrelevant. Further, the investor is barred from having a contractual right or other agreement that requires any person involved in any part of the tax credit transaction to purchase or liquidate the investor’s interest in the partnership at a future date (a “put’) at a price that is more than its fair market value determined at the time of exercise. In determining fair market value for this purpose, only those contracts or other arrangements creating rights or obligations that are entered into in the ordinary course of the partnership’s business and are negotiated at arms-length with parties not related to the partnership or investors may be taken into account. Finally, an investor may not acquire its interest in the partnership with the intent of it abandoning the interest after the completion of the qualified rehabilitation.

It is probable that the important institutional investors in the historic tax credit market are reviewing this guidance and evaluating how transactions need to be structured for those investors to be confident in their tax positions in new transactions. Given the focus of this guidance on ensuring that the investor has some meaningful economic upside and downside and is not protected by the sponsor from income tax risks associated with the disallowance of the credit, it is certain that new historic tax credit transactions likely will present a very different set of risks and potential benefits to tax credit investors. Practitioners and investors hope that the guidance would smooth the path to a resumption of investments in historic tax credit projects that had been deferred pending this guidance.