Section 42 Utility Allowance Regulations Update, 33703-33706 [E7-11731]
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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules
Bulletin 767–21A0167, Revision 1, dated
December 19, 2006.
Unsafe Condition
(d) This AD results from reports of duct
assemblies in the environmental control
system (ECS) with burned Boeing Material
Specification (BMS) 8–39 polyurethane foam
insulation. This AD also results from a report
from the airplane manufacturer that airplanes
were assembled with duct assemblies in the
ECS wrapped with BMS 8–39 polyurethane
foam insulation, a material of which the fire
retardant properties deteriorate with age. We
are issuing this AD to prevent a potential
electrical arc from igniting the BMS 8–39
polyurethane foam insulation on the duct
assemblies or the ECS, which could
propagate a small fire and lead to a larger fire
that might spread throughout the airplane
through the ECS.
Compliance
(e) You are responsible for having the
actions required by this AD performed within
the compliance times specified, unless the
actions have already been done.
ECS Duct Assembly Rework
(f) Except as provided by paragraph (g) of
this AD, within 72 months after the effective
date of this AD, rework the duct assemblies
in the ECS for the air distribution system at
sections 41, 45, and 46; the Gasper air system
at sections 41, 43, 45, and 46; the forward
electronic and electrical (E/E) compartment
air supply; and the instrument panel cooling
supply; in accordance with the
Accomplishment Instructions and
Appendices A and B of Boeing Service
Bulletin 767–21A0167, Revision 1, dated
December 19, 2006.
Optional Part Installed
(g) If an affected duct assembly having a
part number other than part number
217T2109–12, or a part number other than
any part number specified in the applicable
figure of Boeing Service Bulletin 767–
21A0167, Revision 1, dated December 19,
2006, is found installed, and that part
number is listed as an optional part number
in the table in paragraph B.2., ‘‘Optional Part
Table,’’ of the Accomplishment Instructions
of the service bulletin: No rework is required
for that duct assembly only.
ebenthall on PRODPC61 with PROPOSALS
Parts Installation
(h) As of the effective date of this AD, no
person may install an air distribution system,
Gasper air system, forward E/E compartment
air supply, or instrument panel cooling
supply duct assembly with BMS 8–39
polyurethane foam insulation on any
airplane.
Alternative Methods of Compliance
(AMOCs)
(i)(1) The Manager, Seattle Aircraft
Certification Office, FAA, has the authority to
approve AMOCs for this AD, if requested in
accordance with the procedures found in 14
CFR 39.19.
(2) To request a different method of
compliance or a different compliance time
for this AD, follow the procedures in 14 CFR
39.19. Before using any approved AMOC on
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any airplane to which the AMOC applies,
notify your appropriate principal inspector
(PI) in the FAA Flight Standards District
Office (FSDO), or lacking a PI, your local
FSDO.
Issued in Renton, Washington, on June 8,
2007.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. E7–11781 Filed 6–18–07; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG–128274–03]
RIN 1545–BC22
Section 42 Utility Allowance
Regulations Update
Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking
and notice of public hearing.
AGENCY:
SUMMARY: This document contains
proposed regulations that amend the
utility allowances regulations
concerning the low-income housing tax
credit. The proposed regulations update
the utility allowances regulations to
provide new options for estimating
tenant utility costs. The proposed
regulations affect owners of low-income
housing projects who claim the credit,
the tenants in those low-income housing
projects, and the state and local housing
credit agencies who administer the
credit. This document also provides
notice of a public hearing on these
proposed regulations.
DATES: Written or electronic comments
must be received by September 17,
2007. Outlines of topics to be discussed
at the public hearing scheduled for
October 9, 2007, must be received by
September 18, 2007.
ADDRESSES: Send submissions to:
CC:PA:LPD:PR (REG–128274–03), room
5203, Internal Revenue Service, P.O.
Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions
may be hand-delivered Monday through
Friday between the hours of 8 a.m. and
4 p.m. to CC:PA:LPD:PR (REG–128274–
03), Courier’s Desk, Internal Revenue
Service, 1111 Constitution Avenue,
NW., Washington, DC, or sent
electronically, via the Federal
eRulemaking Portal at
www.regulations.gov (IRS REG–128274–
03). The public hearing will be held in
the auditorium, Internal Revenue
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Building, 1111 Constitution Avenue,
NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Concerning the proposed regulations,
David Selig, at (202) 622–3040;
concerning submissions of comments,
the hearing, or to be placed on the
building access list to attend the
hearing, Richard Hurst, at
Richard.A.Hurst@irscounsel.treas.gov or
(202) 622–7180 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collections of information
contained in this notice of proposed
rulemaking in § 1.42–10(b)(4)(ii) have
previously been reviewed and approved
by the Office of Management and
Budget in accordance with the
Paperwork Reduction Act (44 U.S.C.
3507) under control number 1545–1102.
Background
This document contains proposed
amendments to the Income Tax
Regulations (26 CFR part 1) relating to
the low-income housing credit under
section 42 of the Internal Revenue Code.
Section 42(a) provides that, for purposes
of section 38, the amount of the lowincome housing credit determined
under section 42 for any taxable year in
the credit period is an amount equal to
the applicable percentage of the
qualified basis of each qualified lowincome building. A qualified lowincome building is defined in section
42(c)(2) as any building that is part of
a qualified low-income housing project.
A qualified low-income housing
project is defined in section 42(g)(1) as
any project for residential rental
housing if the project meets one of the
following tests elected by the taxpayer:
(1) At least 20 percent of the residential
units in the project are rent-restricted
and occupied by individuals whose
income is 50 percent or less of area
median gross income; or (2) at least 40
percent of the residential units in the
project are rent-restricted and occupied
by individuals whose income is 60
percent or less of area median gross
income. If a taxpayer does not meet the
elected test, the project is not eligible for
the section 42 credit.
In order to qualify as a rent-restricted
unit within the meaning of section
42(g), the gross rent for the unit must
not exceed 30 percent of the applicable
income limitation. If any utilities are
paid directly by the tenant, section
42(g)(2)(B)(ii) requires the inclusion in
gross rent of a utility allowance
determined by the Secretary, after taking
into account the procedures under
section 8 of the United States Housing
Act of 1937.
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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules
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Section 1.42–10(b) provides rules for
calculating the appropriate utility
allowance based upon whether (1) the
building receives rental assistance from
the Farmers Home Administration
(FmHA), now known as the Rural
Housing Service; (2) the building has
any tenant that receives FmHA rental
assistance; (3) the building’s rents and
utility allowances are reviewed by the
Department of Housing and Urban
Renewal (HUD) on an annual basis; or
(4) the building is not described in (1),
(2), or (3) above (other buildings).
Under § 1.42–10(b)(4), other buildings
generally use the applicable Public
Housing Authority (PHA) utility
allowance established for the Section 8
Existing Housing Program or use a local
utility company estimate. The local
utility company estimate may be
obtained by any interested party
(including a low-income tenant, a
building owner, or a State or local
housing credit agency (Agency)).
Explanation of Provisions
The IRS and Treasury Department
have received comments from
organizations representing tenants, nonprofit housing organizations, housing
credit agencies, building owners,
building management companies,
developers, and others noting that the
existing methods in § 1.42–10 that
provide rules for calculating utility
expenses often result in flawed
information being used for calculating
rent adjustments and need updating.
These organizations assert that PHA
utility schedules referenced by the
existing regulations do not represent the
proper usage of utilities for low-income
housing tax credit units. This is
primarily because PHA utility schedules
are designed for Section 8 properties,
which generally are older buildings
with higher utility costs, whereas lowincome housing projects require
measurements that are appropriate for
new construction. Further, a number of
project developers, owners, and
building managers have indicated that
they are unable to obtain local utility
estimates due to a lack of data or an
unwillingness on the part of utility
companies to provide the information.
Even if a utility company is willing to
provide an initial estimate, annual
updates are often difficult to obtain.
Therefore, these commentators have
recommended that § 1.42–10 be
amended to provide more viable and
accurate options for estimating tenant
utility costs.
In response to these concerns, § 1.42–
10(b)(4)(ii) is amended by these
proposed regulations to provide
additional options for accurately
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calculating utility allowances. Section
1.42–10(b)(4)(ii)(B), which permits any
interested party to obtain a local utility
company estimate for a unit, is revised
to accommodate multiple utility
services to a property. When charges for
electricity transmission and distribution
are paid to more than one company, cost
estimates must be obtained from each of
the utilities when computing the utility
allowance.
Section 1.42–10(b)(4)(ii) is amended
to permit a building owner to obtain a
utility estimate for each unit in a
building from the Agency that has
jurisdiction over the building. The
Agency’s estimate must take into
account the local utility rate data,
property type, climate variables by
region in the State, taxes and fees on
utility charges, and property building
materials and mechanical systems. An
Agency may also use actual utility
company usage data and rates for the
building.
Further, the regulations are proposed
to be amended to permit a building
owner to calculate utility allowances
using the ‘‘HUD Utility Schedule
Model’’ that can be found on the LowIncome Housing Tax Credits page at
https://www.huduser.org/datasets/
lihtc.html. The HUD Utility Schedule
Model is based on data from the
Residential Energy Consumption Survey
(RECS) conducted by the Department of
Energy. RECS data provides energy
consumption by structure for heating,
air conditioning, cooking, water heating,
and other electric (lighting and
refrigeration). The HUD Utility
Schedule Model incorporates building
location and climate. A building owner
who chooses to use the HUD Utility
Schedule Model must furnish a copy of
the calculations using the HUD Utility
Schedule Model to the Agency that has
jurisdiction over the building. A
building owner also must make
available copies of the calculations to
the tenants in the building.
Section 1.42–10(c) provides that if the
applicable utility allowance for a unit in
a building changes, the new utility
allowance must be used to compute
gross rent of rent-restricted units due 90
days after the change. Commentators
requested that this rule be modified to
restrict changes to the building’s utility
allowance until after the building has
achieved 90 percent occupancy for a
period of 90 consecutive days, or by the
end of the first year of the credit period,
whichever is earlier. The proposed
regulations adopt this comment. Section
1.42–10(c) also is modified to require
that a building owner must review at
least annually the basis on which utility
allowances have been established and
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must update the applicable utility
allowance. The review must take into
account any changes to the building
such as any energy conservation
measures that affect energy
consumption and changes in utility
rates.
The IRS and Treasury Department
request comments on whether other
methods should be used for calculating
utility allowances such as energy or
water and sewer services using a
software model run by a State-certified
engineer who is approved by the
Agency that has jurisdiction over the
building.
Proposed Effective Date
The regulations are proposed to apply
to taxable years beginning on or after the
date of publication of the Treasury
decision adopting these rules as final
regulations in the Federal Register.
Special Analyses
It has been determined that this notice
of proposed rulemaking is not a
significant regulatory action as defined
in Executive Order 12866. Therefore, a
regulatory assessment is not required. It
also has been determined that section
553(b) of the Administrative Procedure
Act (5 U.S.C. chapter 5) does not apply
to these regulations, and because the
regulations do not impose a collection
of information on small entities, the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Internal Revenue
Code, this regulation has been
submitted to the Chief Counsel for
Advocacy of the Small Business
Administration for comment on their
impact on small business.
Comments and Public Hearing
Before these proposed regulations are
adopted as final regulations,
consideration will be given to any
written comments (a signed original and
eight (8) copies) or electronic comments
that are submitted timely to the IRS.
Comments are requested on all aspects
of the proposed regulations. In addition,
the IRS and Treasury Department
specifically request comments on the
clarity of the proposed rules and how
they can be made easier to understand.
All comments will be available for
public inspection and copying.
A public hearing has been scheduled
for October 9, 2007, at 10 a.m. in the
auditorium of the Internal Revenue
Building, 1111 Constitution Avenue,
NW., Washington, DC. Because of access
restrictions, visitors will not be
admitted beyond the Internal Revenue
Building lobby more than 30 minutes
before the hearing starts. Due to
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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules
building security procedures, visitors
must enter at the Constitution Avenue
entrance. In addition, all visitors must
present photo identification to enter the
building. For information about having
your name placed on the building
access list to attend the hearing, see the
FOR FURTHER INFORMATION CONTACT
section of this preamble.
The rules of 26 CFR 601.601(a)(3)
apply to the hearing. Persons who wish
to present oral comments at the hearing
must submit electronic or written
comments by September 17, 2007 and
submit an outline of the topics to be
discussed and the time to be devoted to
each topic (signed original and eight (8)
copies) by September 18, 2007. A period
of 10 minutes will be allotted to each
person for making comments. An
agenda showing the scheduling of the
speakers will be prepared after the
deadline for receiving outlines has
passed. Copies of the agenda will be
available free of charge at the hearing.
Drafting Information
The principal author of these
regulations is David Selig, Office of the
Associate Chief Counsel (Passthroughs
and Special Industries), IRS. However,
other personnel from the IRS and
Treasury Department participated in
their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Proposed Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
proposed to be amended as follows:
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read in part as
follows:
ebenthall on PRODPC61 with PROPOSALS
Authority: 26 U.S.C. 7805. * * *
Par. 2. Section 1.42–10 is amended
by:
1. Revising the first sentence of
paragraph (a).
2. Revising paragraphs (b)(1), (b)(2),
(b)(3), (b)(4) introductory text and (c).
3. Removing the language ‘‘HUD
rental assistance’’ from the first place
that it appears in paragraph (b)(4)(i) and
adding the language ‘‘rental assistance
from the Department of Housing and
Urban Development’’ in its place.
4. Adding two sentences at the end of
paragraph (b)(4)(ii)(A).
5. Revising the second sentence in
paragraph (b)(4)(ii)(B).
6. Adding new paragraphs (b)(4)(ii)(C)
and (b)(4)(ii)(D).
The additions and revisions read as
follows:
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§ 1.42–10
Utility allowances.
(a) * * * If the cost of any utility
(other than telephone or cable
television) for a residential rental unit is
paid directly by the tenant(s), the gross
rent for that unit includes the applicable
utility allowance determined under this
section. * * *
(b) Applicable utility allowances—(1)
Buildings assisted by the Rural Housing
Service. If a building receives assistance
from the Rural Housing Service (RHSassisted building) the applicable utility
allowance for all rent-restricted units in
the building is the utility allowance
determined under the method
prescribed by the Rural Housing Service
(RHS) for the building.
(2) Buildings with Rural Housing
Service assisted tenants. If any tenant in
a building receives RHS rental
assistance payments (RHS tenant
assistance), the applicable utility
allowance for all rent-restricted units in
the building (including any units
occupied by tenants receiving rental
assistance payments from the
Department of Housing and Urban
Development (HUD)) is the applicable
RHS utility allowance.
(3) Buildings regulated by the
Department of Housing and Urban
Development. If neither a building nor
any tenant in the building receives RHS
housing assistance, and the rents and
utility allowances of the building are
reviewed by HUD on an annual basis
(HUD-regulated building), the
applicable utility allowance for all rentrestricted units in the building is the
applicable HUD utility allowance.
(4) Other buildings. If a building is
neither an RHS-assisted nor a HUDregulated building, and no tenant in the
building receives RHS tenant assistance,
the applicable utility allowance for rentrestricted units in the building is
determined under the following
methods.
(i) * * *
(ii) * * * (A) * * * However, if a
local utility company estimate is
obtained for any unit in the building
under paragraph (b)(4)(ii)(B) of this
section, a State or local housing credit
agency (Agency) provides a building
owner with an estimate for any unit in
a building under paragraph (b)(4)(ii)(C)
of this section, or a cost estimate is
calculated using the HUD Utility
Schedule Model under paragraph
(b)(4)(ii)(D) of this section, then the
estimate under paragraph (b)(4)(ii)(B),
(C), or (D) of this section becomes the
applicable utility allowance for all rentrestricted units of similar size and
construction in the building. Paragraphs
(b)(4)(ii)(B), (C), and (D) of this section
do not apply to units to which the rules
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33705
of paragraphs (b)(1), (2), (3), or (4)(i) of
this section apply.
(B) * * * The estimate is obtained
when the interested party receives, in
writing, information from a local utility
company (including combined rate
charges from multiple utility
companies) providing the estimated cost
of the utilities provided by that
company for a unit of similar size and
construction for the geographic area in
which the building containing the unit
is located.
(C) Agency estimate. A building
owner may obtain a utility estimate for
each unit in the building from the
Agency that has jurisdiction over the
building provided the Agency agrees to
provide the estimate. The estimate is
obtained when the building owner
receives, in writing, information from
the Agency providing the estimated perunit cost of the utilities for units of
similar size and construction for the
geographic area in which the building
containing the units is located. The
Agency estimate may be obtained by a
building owner at any time during the
building’s extended use period (see
section 42(h)(6)(D)). Costs incurred in
obtaining the estimate are borne by the
building owner. In establishing an
accurate utility allowance estimate for a
particular building, an Agency (or an
agent or other private contractor of the
Agency) must take into account, among
other things, local utility rate data,
property type, climate and degree-day
variables by region in the state, taxes
and fees on utility charges, building
materials, and mechanical systems. An
Agency may also use actual utility
company usage data and rates for the
building.
(D) HUD Utility Schedule Model. A
building owner may calculate a utility
estimate using the ‘‘HUD Utility
Schedule Model’’ that can found on the
Low-Income Housing Tax Credits page
at https://www.huduser.org/datasets/
lihtc.html. A building owner who
chooses this method must furnish a
copy of the calculations using the HUD
Utility Schedule Model to the Agency
that has jurisdiction over the building.
A building owner also must make
available copies of the calculations to
the tenants in the building.
(c) Changes in applicable utility
allowance—(1) In general. If at any time
during the building’s extended use
period, the applicable utility allowance
for a unit changes, the new utility
allowance must be used to compute
gross rents of rent-restricted units due
90 days after the change. For example,
if rent must be lowered because a local
utility company estimate is obtained
that shows a higher utility cost than the
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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules
concerning taxpayers’ requests to
housing credit agencies to obtain a
qualified contract (as defined in section
42(h)(6)(F) of the Internal Revenue
Code) for the acquisition of a lowincome housing credit building. The
regulations will affect taxpayers
requesting a qualified contract, potential
buyers, and low-income housing credit
agencies responsible for the
administration of the low-income
housing credit program. This document
also provides notice of a public hearing
on these proposed regulations.
DATES: Written or electronic comments
must be received by September 17,
2007. Outlines of topics to be discussed
at the public hearing scheduled for
October 15, 2007, must be received by
September 13, 2007.
ADDRESSES: Send submissions to:
Internal Revenue Service,
CC:PA:LPD:PR (REG–114084–04), room
5203, PO Box 7604, Ben Franklin
Station, Washington, DC 20044.
Submissions may be hand-delivered
§ 1.42–12 Effective dates and transitional
rules.
Monday through Friday between the
hours of 8 a.m. and 4 p.m. to
(a) * * *
(4) Utility allowances. Section 1.42–10 CC:PA:LPD:PR (REG–114084–04),
Courier’s Desk, Internal Revenue
is applicable to taxable years beginning
on or after the date of publication of the Service, 1111 Constitution Avenue,
NW., Washington, DC, or may be sent
Treasury decision adopting these rules
electronically via the Federal
as final regulations in the Federal
eRulemaking Portal at: https://
Register.
www.regulations.gov (IRS REG–114084–
*
*
*
*
*
04). The public hearing will be held in
Kevin M. Brown,
the auditorium, Internal Revenue
Deputy Commissioner for Services and
Building, 1111 Constitution Avenue,
Enforcement.
NW., Washington, DC.
[FR Doc. E7–11731 Filed 6–18–07; 8:45 am]
FOR FURTHER INFORMATION CONTACT:
BILLING CODE 4830–01–P
Concerning the proposed regulations,
Jack Malgeri (202) 622–3040; concerning
submissions of comments, the hearing,
DEPARTMENT OF THE TREASURY
and/or to be placed on the building
access list to attend the hearing, Kelly
Internal Revenue Service
Banks, (202) 622–7180 (not toll-free
numbers).
26 CFR Part 1
otherwise applicable PHA utility
allowance, the lower rent must be in
effect for rent due more than 90 days
after the date of the local utility
company estimate. This paragraph (c)(1)
does not apply until the building has
achieved 90 percent occupancy for a
period of 90 consecutive days or by the
end of the first year of the credit period,
whichever is earlier.
(2) Annual review. A building owner
must review at least annually the basis
on which utility allowances have been
established and must update the
applicable utility allowance in
accordance with paragraph (c)(1) of this
section. The review must take into
account any changes to the building
such as any energy conservation
measures that affect energy
consumption and changes in utility
rates.
Par. 3. Section 1.42–12 is amended by
adding paragraph (a)(4) to read as
follows:
[REG–114084–04]
SUPPLEMENTARY INFORMATION:
RIN 1545–BD20
Paperwork Reduction Act
Section 42 Qualified Contract
Provisions
Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking
and notice of public hearing.
ebenthall on PRODPC61 with PROPOSALS
AGENCY:
SUMMARY: Section 42(h)(6)(F) requires
the Secretary to prescribe such
regulations as may be necessary or
appropriate to carry out the provisions
of section 42(h)(6)(F), including
regulations to prevent the manipulation
of the qualified contract amount. This
document contains proposed
regulations that provide guidance
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The collections of information
contained in this notice of proposed
rulemaking have been submitted to the
Office of Management and Budget for
review in accordance with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)). Comments on the
collections of information should be
sent to the Office of Management and
Budget, Attn: Desk Officer for the
Department of the Treasury, Office of
Information and Regulatory Affairs,
Washington, DC 20503, with copies to
the Internal Revenue Service, Attn: IRS
Reports Clearance Officer,
SE:W:CAR:MP:T:T:SP, Washington, DC
20224. Comments on the collection of
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information should be received by
August 20, 2007.
Comments are specifically requested
concerning:
Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
Internal Revenue Service, including
whether the information will have
practical utility;
The accuracy of the estimated burden
associated with the proposed collection
of information (see below);
How the quality, utility, and clarity of
the information to be collected may be
enhanced;
How the burden of complying with
the proposed collections of information
may be minimized, including through
the application of automated collection
techniques or other forms of information
technology; and
Estimates of capital or start-up costs
and costs of operation, maintenance,
and purchase of service to provide
information.
The collection of information in this
proposed regulation is in § 1.42–
18(a)(1)(ii)(B). This information is
required in order for a taxpayer to
provide a written request to a housing
credit agency to obtain a qualified
contract (as defined in section
42(h)(6)(F) of the Internal Revenue
Code) for the acquisition of a lowincome housing credit building. The
collection of information is voluntary to
obtain a benefit. The likely respondents
are business or other for-profit
institutions.
Estimated total annual reporting
burden: 20,000 hours.
Estimated average annual burden
hours per respondent: 1 hour.
Estimated number of respondents:
20,000.
Estimated annual frequency of
responses: One time.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a valid control
number assigned by the Office of
Management and Budget.
Books or records relating to a
collection of information must be
retained as long as their contents may
become material in the administration
of any internal revenue law. Generally,
tax returns and tax return information
are confidential, as required by 26
U.S.C. 6103.
Background
This document contains amendments
to 26 CFR part 1 under section 42 of the
Internal Revenue Code (Code). Section
42 was amended by section 7108(c)(1) of
the Omnibus Budget Reconciliation Act
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]]>Agencies
[Federal Register Volume 72, Number 117 (Tuesday, June 19, 2007)]
[Proposed Rules]
[Pages 33703-33706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11731]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG-128274-03]
RIN 1545-BC22
Section 42 Utility Allowance Regulations Update
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking and notice of public hearing.
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SUMMARY: This document contains proposed regulations that amend the
utility allowances regulations concerning the low-income housing tax
credit. The proposed regulations update the utility allowances
regulations to provide new options for estimating tenant utility costs.
The proposed regulations affect owners of low-income housing projects
who claim the credit, the tenants in those low-income housing projects,
and the state and local housing credit agencies who administer the
credit. This document also provides notice of a public hearing on these
proposed regulations.
DATES: Written or electronic comments must be received by September 17,
2007. Outlines of topics to be discussed at the public hearing
scheduled for October 9, 2007, must be received by September 18, 2007.
ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-128274-03), room
5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions may be hand-delivered Monday through
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
128274-03), Courier's Desk, Internal Revenue Service, 1111 Constitution
Avenue, NW., Washington, DC, or sent electronically, via the Federal
eRulemaking Portal at www.regulations.gov (IRS REG-128274-03). The
public hearing will be held in the auditorium, Internal Revenue
Building, 1111 Constitution Avenue, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations,
David Selig, at (202) 622-3040; concerning submissions of comments, the
hearing, or to be placed on the building access list to attend the
hearing, Richard Hurst, at Richard.A.Hurst@irscounsel.treas.gov or
(202) 622-7180 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collections of information contained in this notice of proposed
rulemaking in Sec. 1.42-10(b)(4)(ii) have previously been reviewed and
approved by the Office of Management and Budget in accordance with the
Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-
1102.
Background
This document contains proposed amendments to the Income Tax
Regulations (26 CFR part 1) relating to the low-income housing credit
under section 42 of the Internal Revenue Code. Section 42(a) provides
that, for purposes of section 38, the amount of the low-income housing
credit determined under section 42 for any taxable year in the credit
period is an amount equal to the applicable percentage of the qualified
basis of each qualified low-income building. A qualified low-income
building is defined in section 42(c)(2) as any building that is part of
a qualified low-income housing project.
A qualified low-income housing project is defined in section
42(g)(1) as any project for residential rental housing if the project
meets one of the following tests elected by the taxpayer: (1) At least
20 percent of the residential units in the project are rent-restricted
and occupied by individuals whose income is 50 percent or less of area
median gross income; or (2) at least 40 percent of the residential
units in the project are rent-restricted and occupied by individuals
whose income is 60 percent or less of area median gross income. If a
taxpayer does not meet the elected test, the project is not eligible
for the section 42 credit.
In order to qualify as a rent-restricted unit within the meaning of
section 42(g), the gross rent for the unit must not exceed 30 percent
of the applicable income limitation. If any utilities are paid directly
by the tenant, section 42(g)(2)(B)(ii) requires the inclusion in gross
rent of a utility allowance determined by the Secretary, after taking
into account the procedures under section 8 of the United States
Housing Act of 1937.
[[Page 33704]]
Section 1.42-10(b) provides rules for calculating the appropriate
utility allowance based upon whether (1) the building receives rental
assistance from the Farmers Home Administration (FmHA), now known as
the Rural Housing Service; (2) the building has any tenant that
receives FmHA rental assistance; (3) the building's rents and utility
allowances are reviewed by the Department of Housing and Urban Renewal
(HUD) on an annual basis; or (4) the building is not described in (1),
(2), or (3) above (other buildings).
Under Sec. 1.42-10(b)(4), other buildings generally use the
applicable Public Housing Authority (PHA) utility allowance established
for the Section 8 Existing Housing Program or use a local utility
company estimate. The local utility company estimate may be obtained by
any interested party (including a low-income tenant, a building owner,
or a State or local housing credit agency (Agency)).
Explanation of Provisions
The IRS and Treasury Department have received comments from
organizations representing tenants, non-profit housing organizations,
housing credit agencies, building owners, building management
companies, developers, and others noting that the existing methods in
Sec. 1.42-10 that provide rules for calculating utility expenses often
result in flawed information being used for calculating rent
adjustments and need updating. These organizations assert that PHA
utility schedules referenced by the existing regulations do not
represent the proper usage of utilities for low-income housing tax
credit units. This is primarily because PHA utility schedules are
designed for Section 8 properties, which generally are older buildings
with higher utility costs, whereas low-income housing projects require
measurements that are appropriate for new construction. Further, a
number of project developers, owners, and building managers have
indicated that they are unable to obtain local utility estimates due to
a lack of data or an unwillingness on the part of utility companies to
provide the information. Even if a utility company is willing to
provide an initial estimate, annual updates are often difficult to
obtain. Therefore, these commentators have recommended that Sec. 1.42-
10 be amended to provide more viable and accurate options for
estimating tenant utility costs.
In response to these concerns, Sec. 1.42-10(b)(4)(ii) is amended
by these proposed regulations to provide additional options for
accurately calculating utility allowances. Section 1.42-
10(b)(4)(ii)(B), which permits any interested party to obtain a local
utility company estimate for a unit, is revised to accommodate multiple
utility services to a property. When charges for electricity
transmission and distribution are paid to more than one company, cost
estimates must be obtained from each of the utilities when computing
the utility allowance.
Section 1.42-10(b)(4)(ii) is amended to permit a building owner to
obtain a utility estimate for each unit in a building from the Agency
that has jurisdiction over the building. The Agency's estimate must
take into account the local utility rate data, property type, climate
variables by region in the State, taxes and fees on utility charges,
and property building materials and mechanical systems. An Agency may
also use actual utility company usage data and rates for the building.
Further, the regulations are proposed to be amended to permit a
building owner to calculate utility allowances using the ``HUD Utility
Schedule Model'' that can be found on the Low-Income Housing Tax
Credits page at https://www.huduser.org/datasets/lihtc.html. The HUD
Utility Schedule Model is based on data from the Residential Energy
Consumption Survey (RECS) conducted by the Department of Energy. RECS
data provides energy consumption by structure for heating, air
conditioning, cooking, water heating, and other electric (lighting and
refrigeration). The HUD Utility Schedule Model incorporates building
location and climate. A building owner who chooses to use the HUD
Utility Schedule Model must furnish a copy of the calculations using
the HUD Utility Schedule Model to the Agency that has jurisdiction over
the building. A building owner also must make available copies of the
calculations to the tenants in the building.
Section 1.42-10(c) provides that if the applicable utility
allowance for a unit in a building changes, the new utility allowance
must be used to compute gross rent of rent-restricted units due 90 days
after the change. Commentators requested that this rule be modified to
restrict changes to the building's utility allowance until after the
building has achieved 90 percent occupancy for a period of 90
consecutive days, or by the end of the first year of the credit period,
whichever is earlier. The proposed regulations adopt this comment.
Section 1.42-10(c) also is modified to require that a building owner
must review at least annually the basis on which utility allowances
have been established and must update the applicable utility allowance.
The review must take into account any changes to the building such as
any energy conservation measures that affect energy consumption and
changes in utility rates.
The IRS and Treasury Department request comments on whether other
methods should be used for calculating utility allowances such as
energy or water and sewer services using a software model run by a
State-certified engineer who is approved by the Agency that has
jurisdiction over the building.
Proposed Effective Date
The regulations are proposed to apply to taxable years beginning on
or after the date of publication of the Treasury decision adopting
these rules as final regulations in the Federal Register.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It also has
been determined that section 553(b) of the Administrative Procedure Act
(5 U.S.C. chapter 5) does not apply to these regulations, and because
the regulations do not impose a collection of information on small
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not
apply. Pursuant to section 7805(f) of the Internal Revenue Code, this
regulation has been submitted to the Chief Counsel for Advocacy of the
Small Business Administration for comment on their impact on small
business.
Comments and Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) or electronic comments that are submitted timely
to the IRS. Comments are requested on all aspects of the proposed
regulations. In addition, the IRS and Treasury Department specifically
request comments on the clarity of the proposed rules and how they can
be made easier to understand. All comments will be available for public
inspection and copying.
A public hearing has been scheduled for October 9, 2007, at 10 a.m.
in the auditorium of the Internal Revenue Building, 1111 Constitution
Avenue, NW., Washington, DC. Because of access restrictions, visitors
will not be admitted beyond the Internal Revenue Building lobby more
than 30 minutes before the hearing starts. Due to
[[Page 33705]]
building security procedures, visitors must enter at the Constitution
Avenue entrance. In addition, all visitors must present photo
identification to enter the building. For information about having your
name placed on the building access list to attend the hearing, see the
FOR FURTHER INFORMATION CONTACT section of this preamble.
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who
wish to present oral comments at the hearing must submit electronic or
written comments by September 17, 2007 and submit an outline of the
topics to be discussed and the time to be devoted to each topic (signed
original and eight (8) copies) by September 18, 2007. A period of 10
minutes will be allotted to each person for making comments. An agenda
showing the scheduling of the speakers will be prepared after the
deadline for receiving outlines has passed. Copies of the agenda will
be available free of charge at the hearing.
Drafting Information
The principal author of these regulations is David Selig, Office of
the Associate Chief Counsel (Passthroughs and Special Industries), IRS.
However, other personnel from the IRS and Treasury Department
participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805. * * *
Par. 2. Section 1.42-10 is amended by:
1. Revising the first sentence of paragraph (a).
2. Revising paragraphs (b)(1), (b)(2), (b)(3), (b)(4) introductory
text and (c).
3. Removing the language ``HUD rental assistance'' from the first
place that it appears in paragraph (b)(4)(i) and adding the language
``rental assistance from the Department of Housing and Urban
Development'' in its place.
4. Adding two sentences at the end of paragraph (b)(4)(ii)(A).
5. Revising the second sentence in paragraph (b)(4)(ii)(B).
6. Adding new paragraphs (b)(4)(ii)(C) and (b)(4)(ii)(D).
The additions and revisions read as follows:
Sec. 1.42-10 Utility allowances.
(a) * * * If the cost of any utility (other than telephone or cable
television) for a residential rental unit is paid directly by the
tenant(s), the gross rent for that unit includes the applicable utility
allowance determined under this section. * * *
(b) Applicable utility allowances--(1) Buildings assisted by the
Rural Housing Service. If a building receives assistance from the Rural
Housing Service (RHS-assisted building) the applicable utility
allowance for all rent-restricted units in the building is the utility
allowance determined under the method prescribed by the Rural Housing
Service (RHS) for the building.
(2) Buildings with Rural Housing Service assisted tenants. If any
tenant in a building receives RHS rental assistance payments (RHS
tenant assistance), the applicable utility allowance for all rent-
restricted units in the building (including any units occupied by
tenants receiving rental assistance payments from the Department of
Housing and Urban Development (HUD)) is the applicable RHS utility
allowance.
(3) Buildings regulated by the Department of Housing and Urban
Development. If neither a building nor any tenant in the building
receives RHS housing assistance, and the rents and utility allowances
of the building are reviewed by HUD on an annual basis (HUD-regulated
building), the applicable utility allowance for all rent-restricted
units in the building is the applicable HUD utility allowance.
(4) Other buildings. If a building is neither an RHS-assisted nor a
HUD-regulated building, and no tenant in the building receives RHS
tenant assistance, the applicable utility allowance for rent-restricted
units in the building is determined under the following methods.
(i) * * *
(ii) * * * (A) * * * However, if a local utility company estimate
is obtained for any unit in the building under paragraph (b)(4)(ii)(B)
of this section, a State or local housing credit agency (Agency)
provides a building owner with an estimate for any unit in a building
under paragraph (b)(4)(ii)(C) of this section, or a cost estimate is
calculated using the HUD Utility Schedule Model under paragraph
(b)(4)(ii)(D) of this section, then the estimate under paragraph
(b)(4)(ii)(B), (C), or (D) of this section becomes the applicable
utility allowance for all rent-restricted units of similar size and
construction in the building. Paragraphs (b)(4)(ii)(B), (C), and (D) of
this section do not apply to units to which the rules of paragraphs
(b)(1), (2), (3), or (4)(i) of this section apply.
(B) * * * The estimate is obtained when the interested party
receives, in writing, information from a local utility company
(including combined rate charges from multiple utility companies)
providing the estimated cost of the utilities provided by that company
for a unit of similar size and construction for the geographic area in
which the building containing the unit is located.
(C) Agency estimate. A building owner may obtain a utility estimate
for each unit in the building from the Agency that has jurisdiction
over the building provided the Agency agrees to provide the estimate.
The estimate is obtained when the building owner receives, in writing,
information from the Agency providing the estimated per-unit cost of
the utilities for units of similar size and construction for the
geographic area in which the building containing the units is located.
The Agency estimate may be obtained by a building owner at any time
during the building's extended use period (see section 42(h)(6)(D)).
Costs incurred in obtaining the estimate are borne by the building
owner. In establishing an accurate utility allowance estimate for a
particular building, an Agency (or an agent or other private contractor
of the Agency) must take into account, among other things, local
utility rate data, property type, climate and degree-day variables by
region in the state, taxes and fees on utility charges, building
materials, and mechanical systems. An Agency may also use actual
utility company usage data and rates for the building.
(D) HUD Utility Schedule Model. A building owner may calculate a
utility estimate using the ``HUD Utility Schedule Model'' that can
found on the Low-Income Housing Tax Credits page at https://
www.huduser.org/datasets/lihtc.html. A building owner who chooses this
method must furnish a copy of the calculations using the HUD Utility
Schedule Model to the Agency that has jurisdiction over the building. A
building owner also must make available copies of the calculations to
the tenants in the building.
(c) Changes in applicable utility allowance--(1) In general. If at
any time during the building's extended use period, the applicable
utility allowance for a unit changes, the new utility allowance must be
used to compute gross rents of rent-restricted units due 90 days after
the change. For example, if rent must be lowered because a local
utility company estimate is obtained that shows a higher utility cost
than the
[[Page 33706]]
otherwise applicable PHA utility allowance, the lower rent must be in
effect for rent due more than 90 days after the date of the local
utility company estimate. This paragraph (c)(1) does not apply until
the building has achieved 90 percent occupancy for a period of 90
consecutive days or by the end of the first year of the credit period,
whichever is earlier.
(2) Annual review. A building owner must review at least annually
the basis on which utility allowances have been established and must
update the applicable utility allowance in accordance with paragraph
(c)(1) of this section. The review must take into account any changes
to the building such as any energy conservation measures that affect
energy consumption and changes in utility rates.
Par. 3. Section 1.42-12 is amended by adding paragraph (a)(4) to
read as follows:
Sec. 1.42-12 Effective dates and transitional rules.
(a) * * *
(4) Utility allowances. Section 1.42-10 is applicable to taxable
years beginning on or after the date of publication of the Treasury
decision adopting these rules as final regulations in the Federal
Register.
* * * * *
Kevin M. Brown,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E7-11731 Filed 6-18-07; 8:45 am]
BILLING CODE 4830-01-P
