Compliance

States are also responsible for monitoring the ongoing development costs, quality and operation of approved projects, as well as the enforcement threat of notifying the IRS of "noncompliance" if the project deviates from the applicable requirements of the Code and the LURA, described above. Such a notice can lead to recapture of previously taken credits and inability to claim credits from the project in the future. The IRS has published Form 8823 for the purpose of reporting possible problems with the project, and its Guide to the Form 8823that details the IRS view on various issues related to noncompliance.

Owners of LIHTC properties and their management agents must be able to prove the tenants living in the low income units meet the eligibility requirements of the LIHTC Program and remain eligible throughout their tenancy. [Section 1.42-5(b)][1] The initial eligibility requirements include, but are not limited to, income eligibility, rent restriction, full-time student limitations, and non-exclusion of Section 8 applicants. Also, each year the tenant remains in the low-income unit, a re-examination or recertification must be performed to ensure the tenant continues to remain LIHTC Program eligible. Failure to correctly prove initial eligibility and re-examine continued eligibility is noncompliance and puts the LIHTC owner at risk of losing its credit claim.

Thorough documentation of tenants' eligibility is required and records must be maintained for each qualified tenant. Records from the first year of participation in the LIHTC Program must be maintained for 21 years from the date the tax return claiming these credits was filed including all extensions and subsequent years records must be maintained for 6 years from the date the tax return claiming the applicable credits was filed including all extensions. [Section 1.42-5(b)(vii)(2)][2]

Owners must report on the compliance status of the LIHTC property at least annually to the State Allocation Agency in which it received its credit allocation. [Section 1.42-5(c)][3] At least annually, State Allocation Agencies are required to monitor and inspect the LIHTC properties in which it has allocated credits. Any discovered or suspected noncompliance must be reported to the Internal Revenue Service (IRS) using IRS Form 8823. State Allocation Agencies must follow very specific requirements for monitoring, inspecting and reporting as laid out by the IRS. [Section 1.42-5 and Federal Register: January 14, 2000 (Volume 65, Number 10) - Compliance Monitoring and Miscellaneous Issues Relating to the Low-Income Housing Credit] [4]

Owners and their management agents are strongly encouraged and in some cases mandated by their State Allocation Agencies to become certified compliance professionals. Certifications can be obtained by several LIHTC industry groups. The Education Requirement is met by successfully passing an industry exam and accruing the applicable number of required course hours. The Experience Requirements vary among designations. All designations also contain a continuing education component to ensure certified professionals maintain their knowledge and keep abreast of the LIHTC Program changes.