Historic Tax Credits: New IRS Safe Harbor Rules After Historic Boardwalk Hall

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Historic Tax Credits: New IRS Safe Harbor Rules After Historic Boardwalk Hall Qualifying, Applying for and Using Tax Credits to Structure Real Estate Projects THURSDAY, MARCH 6, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Peter J. Berrie, Partner, Faegre Baker Daniels, Minneapolis Anthony Ilardi, Jr., Member, Dykema, Detroit The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Historic Tax Credits: New IRS Safe Harbor March 6, 2014 Anthony Ilardi, Jr. Dykema Gossett PLLC Peter Berrie Faegre Baker Daniels LLP

6 Outline HTC Background and Requirements Monetizing the Tax Credits Pre-HBH Case Law Including Virginia Historic Tax Credit Fund 2001 Historic Boardwalk Hall: Background and Tax Court Decision Safe Harbor Industry Reaction 6

7 History of Federal Historic Tax Credits Photo: Wikimedia Commons/Local Hero Book-Cadillac Hotel, Detroit, MI 1986 Tax Reform Act enacted current federal tax credits Goals: Reduce demolitions of historic structures Decrease cost of renovation below value of building Make rehabilitation competitive with new construction 7

8 General Two types of federal historic tax credits under Section 47 of IRC Amount of credit under each is based on percentage of Qualified Rehabilitation Expenditures (QREs) Historic Tax Credit = 20% of QREs Old Building Tax Credit = 10% of QREs (Note: the term Old Building Tax Credit is not used in the industry, so any attempt to impress insiders by using it will backfire.) 8

9 General (cont.) The credit is a one-time credit available only to a taxpayer with an appropriate ownership interest at the time the project is placed in service. The credit can be used entirely within one year, and to the extent not used, it can be carried-forward for up to 20 years. The basis of rehabilitated buildings will be reduced by an amount equal to the credit earned. (But no basis reduction if credit is passed through to a qualifying tenant.) 9

10 Requirements to Obtain HTC Rehabilitation must be substantial In general, the qualified expenditures must exceed the building s adjusted basis at the start of the testing period or $5, The testing period is a 24-month period selected by the developer Expenditures for personal property, acquisition costs, or enlargement costs are not QRE Building must have been in service before rehabilitation Renovations must be consistent with historic character of the building Photo: Wikimedia Commons/Local Hero Broderick Tower, Detroit 10

11 Five Year Recapture Period The original owner must own the building and continue its historic features for five years If not: Full or partial recapture of credit Recapture period Starts: Building placed in service Ends: Five years following Recapture amount decreases by 20% each year of compliance period (e.g., only 80% of credits are recaptured if ownership transfer occurs in second year after PIS) 11

12 Basic Qualification for Historic (i.e., 20%) Tax Credits 20% credit available for certified historic structure Listed in the National Register of Historic Places or Located in a registered historic district and certified as being of historical significance to the district For certified historic structures, the rehabilitation expenditures must satisfy the Secretary of the Interiors Standards for Rehabilitation. It should be noted that these standards typically increase the cost of the rehabilitation significantly. 12

13 Basic Qualification The National Park Service ( NPS ) formally has to approve the rehabilitation plan Approval generally is delegated to the State Historic Preservation Office ( SHPO ) Application process: Part 1: NPS evaluates significance to determine if certified historic structure Part 2: Establish a rehabilitation plan prepared by an architect versed in historic rehabilitations, and request SHPO review Part 3: Request for certification of completion from SHPO 13

14 Pre-1936 Buildings Buildings erected before 1936 that do not meet historic criteria may qualify for a federal credit of 10% of QRE The pre-1936 buildings must keep intact 50% of the external walls, use 75% of the external walls as either interior or exterior walls, and retain 75% of the existing framework This credit (unlike the 20% credit) is not available for buildings that provide housing. No governmental designation is required. 14

15 Pre-1936 Buildings Original Pre-1936 Building Renovated Building Original external wall still intact although no longer external 50% of original walls still intact as external walls 25% of original external wall demolished for expansion 15

16 Structuring Credit Deals Before HBH Equity Investment Structure Investor must be a member of the ownership entity (usually an LLC) before building is placed in service Investor receives 99.9% interest in entity and proportionate credit allocation Master Tenant Structure The investor owns all, or substantially all, of the master tenant Master tenant subleases projects to end users Frequently, the developer group is the manager of the master tenant and is responsible for leasing to the ultimate tenants 16

17 Equity Investment Structure Before HBH Investor Member Managing Member 99.99% ownership 0.01% ownership Building Owner (Pass-Through Entity, e.g. LP or LLC) 17

18 Master Tenant Structure Before HBH Master Tenant Managing Member Investor Member MT Managing Member 10 20% 80 90% 99.99% 0.01% Building Owner Lease Master Tenant Sublease(s) to ultimate users 18

19 Frequent Issues in HTC Cases Before and After Historic Boardwalk Hall John Harvey House (Inn on Winder), Detroit Commissioner challenges HTC projects which use partnerships where: Transaction s substance does not match its form Disguised sales Investors not actually partners or partnership is a sham Transaction lacks economic substance 19

20 The Precursor to Historic Boardwalk Hall: Virginia Historic Tax Credit Fund LP 2001 IRS Arguments: The IRS challenged the partnership s tax return and argued That the investors were not partners and their investment was a sale of state tax credits; or Even if the investors were partners, the contribution was a disguised sale of state credits The Tax Court rejected both of the IRS s arguments and found that (i) the investors were partners and (ii) there was no disguised sale The IRS appealed The Fourth Circuit overturned the Tax Court 20

21 The Precursor to Historic Boardwalk Hall: Virginia Historic Tax Credit Fund LP 2001 (cont d) The Code presumes that a sale occurs if There is a transfer of money to a partnership, and There is a related transfer of property by the partnership to the partner The Code presumes there is a sale if the two transfers occur within two years The presumption is rebuttable 21

22 Virginia Historic Tax Credit Fund LP 2001: Fourth Circuit Court of Appeals The Court of Appeals found that even if the partnership was a true partnership, the transactions were disguised sales under Section 707(c) of the Internal Revenue Code The Fourth Circuit held the credits were like property and: The investors lacked entrepreneurial risk The transaction was like an advanced purchaser who pays for an item with a promise of later delivery 22

23 Historic Boardwalk Hall Background East Hall placed in service in 1929 East Hall designated as a National Historic Landmark Photo: Library of Congress, Prints & Photographs Division, NJ,1-ATCI,18-11 Boardwalk Hall, Atlantic City, New Jersey NJSEA enters a lease for East Hall from ACIA in 1992 East Hall renovations begin in December 1998 Historic Boardwalk Hall LLC is formed in June, 2000 with NJSEA as its sole member A Pitney Bowes affiliate is admitted as an investor member in September 2000 NJSEA transferred the Hall to a partnership (HBH) The investor was a 99.9% member of the partnership The investor was entitled to a three percent preferred return Agreement provided put and call options for the members of the partnership Agreement provided a tax benefits guarantee contract where the municipal owner agreed to pay investor if partnership did not obtain tax credits The U.S. Court of Appeals for the Third Circuit reversed the Tax Court s taxpayer favorable decision on August 27,

24 Other Relevant HBH Facts By end of 1999, NJSEA issued $50 million of bonds and received commitment from Casino Reinvestment Development Authority to reimburse all costs in excess of bond proceeds. Before construction began, consultant approached NJSEA about selling tax credits to get $11 million of benefits that would be similar to an $11 million interest-only loan that may not need to be repaid. Ultimate investor offering memo was entitled The Sale of Historic Tax Credits... Proposed structure would allocate 99% of profits, (credits) and losses to investor but only a small portion of cash flow. NJSEA (governmental entity) provided guarantees (construction completion, operating deficit, tax recapture, environmental indemnity). 24

25 Other Relevant HBH Facts (cont d) Projections (financial forecast) changed wildly from September 1999 (showing annual net operating losses of $1.7 million) to early 2000 (showing net operating income ranging from $716,000 to $1.24 million). Syndicator suggested shifting expenses to landlord to show investors a working operating model. Projections were later adjusted again to add $1 million in annual revenues through new naming rights and an increase in parking and concession revenues After reality finished with the pretense of profitability HBH s actual operating results were much worse net operating losses in the millions. Use of investor s capital = $14,000,000 developer fee to NJSEA, $527,000 for tax-credit transaction costs, and the creation of a $1,826,920 working capital reserve fund. GIC secured put/call option price. 25

26 Historic Boardwalk Hall Structure Payment Hierarchy PB LLC ( investment member ) Title & Insurance Interest Payments on PB s investor loan 99.9% * (up to 3% preferred return) -Profits -Losses -Tax Credits -Cash Flow Income Taxes 99.9% Remaining Cash flow Vested Put Loan $57 M 99.9%.1% Vested Call Tax Benefits Guarantee K Historic Boardwalk Hall ( HBH ), LLC (taxed as a partnership) Totaling $18m and an investor loan of $1.1m - Contributions to pay down acquisition note - Same amt. to be drawn on K loan (increasing balance) and distributed to HBH - Part used by NJSEA to purchase GIC - Part used by HBH to pay NJSEA development fee (w/ associated responsibilities) K2 K1 5 6 NJSEA GIC K Acquisition Note = $53 M Current & accrued but unpaid debt service on notes.1% Remaining Cash flow K1: Sublease East Hall ( sale & purchase for tax purposes) K2: Construction loan K 3P 26

27 Historic Boardwalk Hall: IRS Arguments The IRS challenged the partnership by arguing: The transaction lacked economic substance The investor was not a partner The owner did not sell or transfer the Hall to the partnership The partnership should pay an accuracy penalty 27

28 Historic Boardwalk Hall: Taxpayer Arguments The taxpayer argued that: The economic substance doctrine did not apply because Congress intended HTC to spur otherwise unprofitable investments to rehabilitate historic buildings The investor reasonably expected a 3% return, thus demonstrating it had a profit motive The taxpayer is a partner because there was a partnership agreement that the parties negotiated The transaction documents and the parties conduct show that the Hall was actually transferred to the partnership 28

29 Historic Boardwalk Hall: Tax Court Findings Economic Substance Argument Found economic substance: Tax Credit 3% return Partnership could invest more in the renovation because of investor s contribution Partnership Argument Rejected because: The investor entered into a transaction to facilitate an investment in exchange for tax credits and a three percent return The investor s interest was not more like debt than equity 29

30 Historic Boardwalk Hall: Tax Court Findings (cont d) The court rejected the IRS s argument that the owner did not transfer the Hall to the partnership because: The documents showed an intent that the Hall transfer It was irrelevant that the Hall would continue to be operated by the former owner The former owner s purchase option did not destroy the transfer because it was consistent with the operation of the credits The court rejected the IRS s anti-abuse regulations and Accuracy Penalty Argument because: There was a real business purpose to the transaction Congress intended the HTC to spur investment by reducing participant s tax liabilities; therefore, it was unimportant that the investor s tax liability was reduced by the transaction 30

31 Historic Boardwalk Hall: Result The Tax Court upheld the partnership s 99.9% allocation of the HTC to the investor The IRS appealed the result to the Third Circuit Court of Appeals arguing: The investor was not a partner because it had no entrepreneurial risk or potential for upside gain The partnership was a sham The partnership was not the owner of the Hall The Taxpayer s arguments on appeal were: The partnership is a real partnership and both partners are bona fide The partnership is not a sham The Hall was transferred to the partnership 31

32 Historic Boardwalk Hall: Result (cont d) To a large extent, the taxpayers argued that Congressional policy to encourage historic rehabilitation should override traditional partner analysis while the IRS argued that the benefits intended by Congress only flow to true partners Other credits, such as the Low-Income Housing Tax Credits and New Markets Tax Credits, appear to obviate this issue by different investment rules contained in the Internal Revenue Code 32

33 Historic Boardwalk Hall: Court of Appeals On June 25, 2012, the Court of Appeals Third Circuit in Philadelphia heard oral arguments At oral argument, observers noted that the judges questioned whether the investor had any risk in the partnership because of the various guarantees and indemnities Third Circuit Decision issued on August 27, 2012 reversed the Tax Court decision and ruled that the Pitney Bowes affiliate was not a true partner in Historic Boardwalk Hall, LLC As a result, the Third Circuit affirmed the IRS Administrative Adjustment to reallocate all of the Historic Rehabilitation Tax Credits from Pitney Bowes to the tax-exempt New Jersey Sports and Exposition Authority, a political subdivision of the State of New Jersey 33

34 Factors on Which the Third Circuit Relied Substance-over-form analysis The Court heavily relied on its interpretation of Comm r v. Culbertson, 337 U.S. 733 (1949) Specific Factors Lack of downside risk Investor s contribution contingent on sufficient construction progress to ensure anticipated credit allocation The NJSEA guaranteed the tax benefits, plus penalties, interest and up to $75,000 in legal fees 34

35 Factors on Which the Third Circuit Relied (cont d) The Investor lacked risk because the project was fully funded before the Investor entered into the transaction and, accordingly, the investment funds were not necessary to complete the project (the Court thus implying that the investment did not meet the Congressional goal of encouraging tax credit investments in projects that otherwise would not be funded) Although the 3% preferred return was not formally guaranteed, the Investor could exercise a put option and obtain any unpaid preferred return Moreover, the put option was supported by a Guaranteed Investment Contract purchased by NJSEA 35

36 Factors on Which the Third Circuit Relied (cont d) The Third Circuit noted: [T]he parties agreed to shield [the Investor s] investment from any meaningful risk. [The Investor] was assured of receiving the value of the [historic rehabilitation tax credits] and its Preferred Return regardless of the success or failure of the rehabilitation of the East Hall and [the Partnership s] subsequent operation. Lack of meaningful upside potential NJSEA had a call option at fair market value The Court concluded that the fair market value would never exceed the unpaid preferred return; thus, there was no upside 36

37 Factors on Which the Third Circuit Relied (cont d) Projections The Third Circuit was troubled by what it perceived as heavily manipulated projections on which the parties ostensibly relied, but which, the Court concluded, were not grounded in reality: To put it mildly, the parties and their advisors were imaginative in creating financial projections to make it appear [the Partnership] would be a profit-making enterprise. 37

38 Historic Boardwalk Hall Conclusions & Recommendations No risk, no partner is a basic tenet of federal tax common law Bad facts make bad law Partnerships should be cautious in excessively reducing risk to investors when structuring HTC transactions Some practitioners have concluded that a put option may be reasonable on the theory that it protects against being stuck in a bad deal, but a call option should not be used since the call option arguably eliminates the ability to make a profit (but others have proposed eliminating the put and keeping the call, while yet others are keeping both) Caution should be exercised in restructuring closed transactions now, since such restructuring may trigger unintended consequences and create a roadmap for the IRS 38

39 Historic Boardwalk Hall Conclusions & Recommendations (cont d) Master Tenant Structure Some have suggested this as a solution Under the Master Tenant structure, the Investor leaves the property and, in accordance with tax rules, passes through the credit to the Master Tenant Issues with this structure Lease must be a true lease, including rent at fair rental value The owner recoups its costs from rental payments, which typically are not received up front. This may necessitate additional financing Traditionally, master tenants frequently are also partners making capital contributions (which are then used to fund construction) thus not avoiding the Historic Boardwalk issues There is some limited indication that the IRS may consider issuing guidance, but no certainty that it will 39

40 Historic Boardwalk Hall Conclusions & Recommendations (cont d) Structuring Considerations Sandwich Leases Super Subordination Agreements (SNDAs) Timing and Amount of Investor Equity Capital Contribution Installment at end of compliance period equaling put price Level of Guaranties Operating Deficit Guaranty capped. Tax credit recapture guaranty limited. Control provisions changing after the 5-year compliance period 40

41 Safe Harbor General On December 30, 2013, the IRS issued Rev. Proc , a safe harbor for investments in historic tax credit projects. Intended to provide more predictability after the uncertainty created by the IRS s victory in Historic Boardwalk Hall. 41

42 Safe Harbor Applicability & Limitations This safe harbor is effective for federal historic tax credits allocated after December 30, 2013, i.e. effective for projects placed in service after December 30, (In addition, any projects placed in service before December 31, 2013 that just happened to meet all the requirements of the safe harbor would also get its benefit.) Because the rev. proc. is a safe harbor only, it does not mean that partnership allocations that do not comply are necessarily ineffective. But because of the general uncertainty created by HBH, there will be strong motivation for investors and developer/sponsors to comply with the safe harbor. 42

43 Safe Harbor Applicability and Limitations (cont.) If a partnership meets the standards of this new safe harbor, the IRS will not challenge the investor s status as a partner, i.e. the partnership s allocations of tax credits to the investor partner will not be challenged. Safe harbor only applies to historic tax credits (not renewable energy, low-income housing or new markets tax credits). Safe harbor does not address twinned deals (e.g. a project with both historic tax credits and low-income housing tax credits. IRS could still challenge other historic tax credit-related items such as classification of QREs (qualified rehabilitation expenditures) and the tax-exempt use rules. 43

44 Safe Harbor - Definitions The safe harbor describes two classes of partners: Principals and Investors. Principals are generally described as one or more managers authorized to act for the Partnership. Investors are partners (other than Principals) that hold an interest in the Partnership. Developer Partnership is a Partnership that owns and restores a historic building. Master Tenant Partnership is a Partnership that leases a historic building from a Developer Partnership and which receives a passthrough of the historic tax credits. 44

45 Safe Harbor Partnership Interest Percentages Investor s Minimum Interest: Investor s share of income, gain, loss, deductions and tax credits cannot be less than 5% of its highest allocation percentage. E.g., if the investor initially is allocated 99% of income and tax credits, then its share cannot be reduced after the 5-year credit recapture period to less than 5% of 99%, or 4.95%. Principal s Minimum Interest: Principal must have at least a 1% interest in each material item of income, gain, loss, deductions and tax credits at all times during the existence of the partnership. Compliance with these requirements should not be difficult but the minimum 1% interest is different than what had been commonplace. The flip structure had been used in renewable energy tax credit structures, but was less common in historic projects. They should become much more common. 45

46 Safe Harbor Investor s Investment Requirements Minimum Contribution: Before the building is placed in service, the Investor must contribute at least 20% of the Investor s total expected capital contributions... as of the date the Building is placed in service. Because the calculation of the total expected capital contributions is not made until the building is placed in service, this standard cannot be met with certainty until the date the building is placed in service. Deals may be structured with contributions slightly in excess of the projected 20% to create some buffer. 46

47 Safe Harbor Investor s Investment Requirements (cont.) Fixed Contribution: At least 75% of the Investor s total expected capital contributions must be fixed in amount before the date the building is placed in service. The practical effect of this is to limit the amount of the Investor s capital contribution that is subject to adjuster, i.e. there is a 25% cap on adjusters. Industry participants believe that installments of Investor s capital contributions can still be contingent on satisfaction of certain requirements, such as Part III approval. 47

48 Safe Harbor Investor s Investment Requirements (cont.) 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 to be allocated. (emphasis added). This is one of the most unclear provisions. Without the economics (e.g. cash flow, etc.) matching the partners percentage interests at all times, it may be difficult to show value commensurate with the overall interest. The first example in Revenue Procedure supports this interpretation by implying that the investor must receive cash distributions on a pro rata basis commensurate with its share of profits. 48

49 Safe Harbor Investor s Investment Requirements (cont.) Market Terms: 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 compared to a real estate development project that does not qualify for historic tax credits. Similarly, the Investor cannot receive distributions disproportionate to its interest. Investors (and Investors attorneys issuing opinions) will want some comfort that any fees, lease terms or other arrangements are reasonable. Some accounting firms have begun the due diligence necessary to provide reports to this effect. 49

50 Safe Harbor Guarantees and Indemnities Permissible Guarantees The Investor may receive guarantees from the Principal as to any act or omission that would prevent the partnership from qualifying for the credit (for example, obtaining Part III approval). In addition, the Principal can provide completion guarantees, operating deficit guarantees, environmental indemnities and guarantees of financial covenants. 50

51 Safe Harbor Guarantees and Indemnities (cont.) Guarantees Must be Unfunded These permissible guarantees cannot be "funded," meaning the Principal cannot set aside money or property to ensure payment on the guarantees. In addition, the guarantor may not agree to maintain a minimum net worth. The one exception is that reserves in an amount no more than 12 months of reasonably projected partnership operating expenses will not constitute an amount set aside to fund the guarantee. 51

52 Safe Harbor Guarantees and Indemnities (cont.) Impermissible Guarantees No person may guarantee the Investor s ability to claim the credits, the cash equivalent of the credits, or the repayment of any portion of the investor s capital contributions due to the inability to claim the credits if the IRS challenges all or a portion of the transactional structure of the partnership. 52

53 Safe Harbor Exit Provisions (Puts and Calls) No Call Options: Neither the Principal nor the partnership can have a call option to repurchase the Investor's interest. Investor Put Options: But the Investor can have a "put" to force the Principal to repurchase its interest, as long as the put price is not above fair market value when the put is exercised. No Abandonment: The Investor may not abandon its interest in the partnership at any time if it does, it will be presumed to have originally acquired its interest with the intent to abandon it (unless the facts and circumstances clearly establish that it did not). Conversations with the IRS after the issuance of the safe harbor have clarified that sale of the Investor s interest for a nominal amount (for example, $1000) is not abandonment. 53

54 Safe Harbor Master Lease Pass-Through Structure General: If the building owner passes the tax credits through to a master tenant, each of the requirements described above are applied at the master tenant level. Investment in Building Owner: If the Investor is receiving the credits as an Investor in the master tenant, it cannot also invest in the building owner, except through an indirect interest in the building owner through the master tenant. This prohibition does not apply to a separately negotiated, distinct economic arrangement (e.g., a separate arm s length investment into the building owner to share in allocations of federal new markets tax credits or low income housing credits). This last point recognizes a common practice in master lease structures the master tenant often uses all or most of the equity investment from the Investor to make an equity investment in the building owner. 54

55 Safe Harbor Master Lease Pass-Through Structure (cont.) Subleases Back to Building Owner or Principal: A sublease of the building from the master tenant back to the building owner or to the principal of either the building owner or the master tenant will be deemed unreasonable unless it is mandated by an unrelated third party. Sublease Term Must be Shorter than Master Lease: Any sublease of the building will be deemed unreasonable unless it is for a term shorter than the master lease. This last requirement makes sense, but it is unclear if a sublease term one day shorter than the master lease would also be unreasonable. 55

56 Industry Reactions 56

57 Tax Credit Resources on the Web Historic/Rehabilitation Tax Credits General General information on Rehabilitation Credit from National Park Service: Application Link to Application (includes Part 1, 2 and 3): IRS Form 3468 (for claiming credits) 57

58 Historic Tax Credits: New IRS Safe Harbor March 6, 2014 Anthony Ilardi, Jr. Dykema Gossett PLLC Peter Berrie Faegre Baker Daniels LLP dms.us