N.Y. Public Housing Law § 22: Allowance of credit, amount and limitations

§ 22. Allowance of credit, amount and limitations. 1. A taxpayer

subject to tax under article nine-A, twenty-two, or thirty-three of the

tax law which owns an interest in one or more eligible low-income

buildings, or a transferee of such a taxpayer as described in

subdivision eight of this section, shall be allowed a credit against

such tax for the amount of low-income housing credit allocated by the

commissioner to each such building. Except as provided in subdivision

two of this section, the credit amount so allocated shall be allowed as

a credit against the tax for the ten taxable years in the credit period.

2. Adjustment of first-year credit allowed in eleventh year. The

credit allowable for the first taxable year of the credit period with

respect to any building shall be adjusted using the rules of section

42(f)(2) of the internal revenue code (relating to first-year adjustment

of qualified basis by the weighted average of low-income to total

residential units), and any reduction in first-year credit by reason of

such adjustment shall be allowable for the first taxable year following

the credit period.

3. Amount of credit. Except as provided in subdivisions four and five

of this section, the amount of low-income housing credit shall be the

applicable percentage of the qualified basis of each eligible low-income

building. Buildings financed by refunded bonds using the rules of

section 146(i)(6) of the internal revenue code, shall be eligible for

credit pursuant to the rules of section 42(b)(2) of the internal revenue

code.

* 4. Statewide limitation. The aggregate dollar amount of credit which

the commissioner may allocate to eligible low-income buildings under

this article shall be two hundred seventeen million dollars. The

limitation provided by this subdivision applies only to allocation of

the aggregate dollar amount of credit by the commissioner and does not

apply to allowance to a taxpayer of the credit with respect to an

eligible low-income building for each year of the credit period.

* NB Effective until April 1, 2027

* 4. Statewide limitation. The aggregate dollar amount of credit which

the commissioner may allocate to eligible low-income buildings under

this article shall be two hundred forty-seven million dollars. The

limitation provided by this subdivision applies only to allocation of

the aggregate dollar amount of credit by the commissioner and does not

apply to allowance to a taxpayer of the credit with respect to an

eligible low-income building for each year of the credit period.

* NB Effective April 1, 2027 until April 1, 2028

* 4. Statewide limitation. The aggregate dollar amount of credit which

the commissioner may allocate to eligible low-income buildings under

this article shall be two hundred seventy-seven million dollars. The

limitation provided by this subdivision applies only to allocation of

the aggregate dollar amount of credit by the commissioner and does not

apply to allowance to a taxpayer of the credit with respect to an

eligible low-income building for each year of the credit period.

* NB Effective April 1, 2028 until April 1, 2029

* 4. Statewide limitation. The aggregate dollar amount of credit which

the commissioner may allocate to eligible low-income buildings under

this article shall be three hundred seven million dollars. The

limitation provided by this subdivision applies only to allocation of

the aggregate dollar amount of credit by the commissioner and does not

apply to allowance to a taxpayer of the credit with respect to an

eligible low-income building for each year of the credit period.

* NB Effective April 1, 2029

5. Building limitation. The dollar amount of credit allocated to any

building shall not exceed the amount the commissioner determines is

necessary for the financial feasibility of the project and the viability

of the building as an eligible low-income building throughout the credit

period. In allocating a dollar amount of credit to any building, the

commissioner shall specify the applicable percentage and the maximum

qualified basis which may be taken into account under this article with

respect to such building. The applicable percentage and the maximum

qualified basis with respect to a building shall not exceed the amounts

determined in subdivisions one and six, respectively, of section

twenty-one of this article.

6. Long-term commitment to low-income housing required. No credit

shall be allowed under this article with respect to a building for the

taxable year unless an extended low-income housing commitment is in

effect as of the end of such taxable year. For purposes of this

subdivision, the term "extended low-income housing commitment" means an

agreement between the taxpayer and the commissioner substantially

similar to the agreement specified in section 42(h)(6)(B) of the

internal revenue code.

7. Credit to successor owner. If a credit is allowed under subdivision

one of this section with respect to an eligible low-income building and

such building (or an interest therein) is sold during the credit period,

the credit for the period after the sale which would have been allowable

under such subdivision one to the prior owner had the building not been

sold shall be allowable to the new owner. Credit for the year of sale

shall be allocated between the parties on the basis of the number of

days during such year that the building or interest was held by each.

8. (a) A taxpayer allowed a credit pursuant to this article may

transfer the credit, in whole or in part, to another person or entity,

who shall be referred to as the transferee, without regard to how any

federal low-income housing tax credit with respect to the low-income

building may be allocated and notwithstanding that such other person or

entity owns no interest in the eligible low-income building or in an

entity with an ownership interest in the eligible low-income building.

Transferees shall be entitled to apply transferred credit to a tax

imposed under article nine-A, twenty-two or thirty-three of the tax law,

provided all requirements for claiming the credit are met. A transferee

may not transfer any credit, or portion thereof, acquired by transfer.

(b) A taxpayer allowed a credit pursuant to this article must enter

into a transfer contract with the transferee. The transfer contract must

specify

(i) the building identification numbers for all buildings in the

project;

(ii) the date each building was placed into service;

(iii) the fifteen year compliance period for the project;

(iv) the schedule of years for which the transfer credit may be

claimed and the amount of credit previously claimed;

(v) the amount of consideration received by the taxpayer for the

transfer credit; and

(vi) the amount of credit being transferred.

(c) No transfer shall be effective unless the taxpayer allowed a

credit pursuant to this article and seeking to transfer the credit files

a transfer statement with the commissioner prior to the transfer and the

commissioner approves such transfer. The transfer statement shall

provide the name and federal identification numbers of the filing

transferor and the taxpayer to whom the filing transferor transferred

the credit, and the amount of credit transferred to each such person or

entity. A copy of the transfer contract shall be attached to the

transfer statement. The statement shall also contain such other

information as the commissioner may require. After reviewing the

transfer contract and the transfer statement, the commissioner shall

approve or deny the transfer as provided in this subdivision. If the

commissioner approves the transfer, the commissioner shall issue an

approval statement that provides the name of the transferor and

transferee, the amount of credit being transferred and such other

information as the commissioner and the commissioner of taxation and

finance deem necessary. A copy of the commissioner's approval statement

must be attached to the transferee's tax return. If the commissioner

denies the transfer, the commissioner shall provide the taxpayer a

written determination for such denial. The commissioner, in consultation

with the commissioner of taxation and finance, may establish such other

procedures and standards deemed necessary for the transferability of the

low-income housing credit.

(d) The commissioner shall forward copies of all transfer statements

and attachments thereto and approval statements to the department of

taxation and finance within thirty days after the transfer is approved

by the commissioner.