ARC 5139C
ECONOMIC DEVELOPMENT AUTHORITY[261]
Adopted and Filed
Rule making related to workforce housing tax incentives program
The Economic Development Authority hereby amends Chapter 48, “Workforce Housing Tax Incentives Program,” Iowa Administrative Code.
Legal Authority for Rule Making
This rule making is adopted under the authority provided in Iowa Code section 15.106A.
State or Federal Law Implemented
This rule making implements, in whole or in part, Iowa Code section 15.356.
Purpose and Summary
2019 Iowa Acts, House File 772, the Governor’s Empower Rural Iowa Act, made changes to the Workforce Housing Tax Incentives Program, including increasing the maximum amount of tax credits the Authority allocates to the program from $20 million to $25 million; revising the definition of “small city”; amending or adding provisions to create a disaster recovery component of the program; amending or adding provisions to provide for competitive scoring; and clarifying and supplementing the contracting, notice, award and revocation processes. These amendments implement changes made by that legislation.  
Public Comment and Changes to Rule Making
Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on March 11, 2020, as ARC 4967C. No public comments were received. No changes from the Notice have been made.
Adoption of Rule Making
This rule making was adopted by the Authority on July 17, 2020.
Fiscal Impact
This rule making has no fiscal impact to the State of Iowa.
Jobs Impact
After analysis and review of this rule making, no impact on jobs has been found.
Waivers
Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Authority for a waiver of the discretionary provisions, if any, pursuant to 261—Chapter 199.
Review by Administrative Rules Review Committee
The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).
Effective Date
This rule making will become effective on September 16, 2020.
The following rule-making actions are adopted:
	Item 1. Amend subrule 48.4(1) as follows:
	48.4(1) Minimum requirements. To receive workforce housing tax incentives pursuant to the program, a proposed housing project shall meet all of the following requirements:
	a.  to d.  No change.
	e. 	The project is not located in a 100-year floodplain.
	Item 2. Amend rule 261—48.5(15) as follows:
261—48.5(15) Housing project application and agreement.
	48.5(1) Application.
	a. 	A housing business seeking workforce housing tax incentives provided in rule 261—48.6(15) shall make application to the authority in the manner prescribed in this rule. The authority may accept applications on a continuous basis and will review applications in the order received. If the total amount of registered projects exceeds the available fiscal year allocation, the authority may stop accepting applications until the registered projects on the wait list have been awarded tax incentives. The authority will acknowledge receipt of the application and notify the applicant within 30 days as to whether the project will be registered pursuant to this rule.
	b. 	The application required in paragraph 48.5(1)“a” shall include all of the following:
	(1)	The following information establishing local participation for the housing project:
	1.	A resolution in support of the housing project by the community where the housing project will be located.
	2.	Documentation of local matching funds pledged for the housing project in an amount equal to at least $1,000 per dwelling unit, including but not limited to a funding agreement between the housing business and the community where the housing project will be located. For purposes of this paragraph, local matching funds shall be in the form of cash or cash equivalents or in the form of a local property tax exemption, rebate, refund, or reimbursement.
	(2)	A report that meets the requirements and conditions of Iowa Code section 15.330(9)if required.
	(3)	Information showing the total costs and funding sources of the housing project sufficient to allow the authority to adequately determine the financing that will be utilized for the housing project, the actual cost of the dwelling units, and the amount of qualifying new investment.
	(4)	Any other information deemed necessary by the authority to evaluate the eligibility and financial need of the housing project under the program.
	48.5(2) Registration. Application review—tax incentive award.
	a. 	All completed applications shall be reviewed and scored on a competitive basis by the authority pursuant to these rules. Review criteria include but are not limited to project need, project readiness, financial capacity, and project impact.
	a.  b.	Upon review and scoring of the application, the authority may register the housing project under the program. If the authority registers the housing project, the authority shall make a preliminary determination as to the amount of tax incentives for which the housing project qualifies all applications received during an application period, the authority may make a tax incentive award to a housing project.  The tax incentive award shall represent the maximum amount of tax incentives the housing project may qualify for under the program. In determining a tax incentive award, the authority shall not use an amount of project costs that exceeds the amount included in the application from the housing business. Tax incentive awards shall be approved by the director of the authority.
	b.  c.	After registering the housing project making a tax incentive award, the authority shall notify the housing business of successful registration under the program its tax incentive award. The notification shall include the amount of tax incentives under rule 261—48.6(15) for which the housing business has received preliminary approval an award and a statement that the amount is a preliminary determination only housing business has no right to receive a tax incentive certificate or claim a tax incentive until all requirements of the program, including all requirements imposed by the agreement entered into pursuant to paragraph 48.5(3)“a,” are satisfied. The amount of tax credits included on a tax credit certificate issued pursuant to this chapter, or a claim for refund of sales and use taxes, shall be contingent upon completion of the requirements in subrule 48.5(3).
	d. 	An applicant that does not receive a tax incentive award during an application period may make additional applications during subsequent application periods. Such applicant shall be required to submit a new application and shall be competitively reviewed and scored in the same manner as other applicants in that application period.
	48.5(3) Agreement and fees.
	a. 	Upon successful registration of the receiving a tax incentive award for a housing project, the housing business shall enter into an agreement with the authority for the successful completion of all requirements of the program.  The agreement shall identify the tax incentive amount, the tax incentive award date, the project completion deadline and the total costs of the housing project.
	b. 	The compliance cost fees imposed in Iowa Code section 15.330(12) shall apply to all agreements entered into under this program and shall be collected by the authority in the same manner and to the same extent as described in that provision.
	c. 	Housing project completion deadline.
	(1)	Except as provided in subparagraph 48.5(3)“c”(2), a housing business shall complete its housing project within three years from the date the housing project is registered by the authority.
	(2)	The authority may for good cause within the discretion of the authority extend a housing project’s completion deadline once by up to 12 months upon application by the housing business, which application shall be made prior to the expiration of the three-year completion deadline in subparagraph 48.5(3)“c”(1) in the manner and form prescribed by the authority.
	d. 	Upon completion of a housing project, an examination of the project in accordance with the American Institute of Certified Public Accountants’ statements on standards for attestation engagements, completed by a certified public accountant authorized to practice in this state, shall be submitted to the authority.
	e. 	Upon review of the examination and verification of the amount of the qualifying new investment, the authority may notify the housing business of the amount that the housing business may claim as a refund of the sales and use taxes under subrule 48.6(2) and may issue a tax credit certificate to the housing business stating the amount of workforce housing investment tax credits under rule 261—48.6(15) that the eligible housing business may claim.  The sum of the amount that the housing business may claim as a refund of the sales and use tax and the amount of the tax credit certificate shall not exceed the amount of the tax incentive award.
	f. 	If, upon review of the examination in paragraph 48.5(3)“d,” the authority determines that a housing project has incurred project costs in excess of the amount submitted in the application and identified in the agreement, the authority shall do one of the following:
	(1)	If the project costs do not cause the housing project’s average dwelling unit cost to exceed the applicable maximum amount authorized in subrule 48.4(1), the authority may consider the agreement fulfilled and may issue a tax credit certificate.
	(2)	If the project costs cause the housing project’s average dwelling cost to exceed the applicable maximum amount authorized in paragraph 48.4(1)“c” but do not cause the average dwelling unit cost to exceed 110 percent of such applicable amount, the authority shall reduce the tax incentive award and the corresponding amount of tax incentives the eligible project may claim under rule 261—48.6(15) by the same percentage that the housing project’s average dwelling cost exceeds the applicable maximum amount under paragraph 48.4(1)“c,” and such tax incentive reduction shall be reflected on the tax credit certificate. If the authority issues a certificate pursuant to this subrule, the department of revenue shall accept the certificate notwithstanding that the housing project’s average dwelling unit cost exceeds the maximum amount specified in paragraph 48.4(1)“c.”
	(3)	If the project costs cause the housing project’s average dwelling unit cost to exceed 110 percent of the applicable maximum amount authorized in paragraph 48.4(1)“c,” the authority shall determine the eligible housing business to be in default under the agreement, shall revoke the tax incentive award and shall not issue a tax credit certificate. The housing business shall not be allowed a refund of sales and use tax under rule 261—48.6(15).
	48.5(4) and 48.5(5) No change.
	Item 3. Amend rule 261—48.6(15) as follows:
261—48.6(15) Workforce housing tax incentives.
	48.6(1) Eligibility. A housing business that has entered into an agreement pursuant to rule 261—48.5(15) is eligible to receive the tax incentives described in subrules 48.6(2) and 48.6(3).
	48.6(2) Sales tax refunds. A housing business may claim a refund of the sales and use taxes paid under Iowa Code chapter 423 that are directly related to a housing project and specified in the agreement. The refund available pursuant to this subrule shall be as provided in Iowa Code section 15.331A to the extent applicable for purposes of this program.
	48.6(3) Income tax credits.
	a. 	A housing business may claim a tax credit in an amount not to exceed the following:
	(1)	For a housing project not located in a small city, 10 percent of the qualifying new investment of a housing project specified in the agreement.
	(2)	For a housing project located in a small city, 20 percent of the qualifying new investment of a housing project specified in the agreement.
	b.  to f.  No change.
	Item 4. Amend rule 261—48.7(15) as follows:
261—48.7(15) Annual program funding allocation, reallocation, and management of excess demand.
	48.7(1) Each year the authority will allocate to the program a portion of the maximum aggregate tax credit cap described in Iowa Code section 15.119. For each fiscal year beginning on or after July 1, 2014, the authority will allocate not more than $20 million for purposes of the program.
	48.7(2) If, during a fiscal year, the authority determines that program demand is less than the amount initially allocated, the authority may reallocate unused amounts to other programs under Iowa Code section 15.119.
	48.7(3) If, in any fiscal year, the authority determines that demand for the tax incentives is more than the amount allocated to the program pursuant to Iowa Code section 15.119, the authority will keep a waiting list of projects registered pursuant to rule 261—48.5(15) and will only enter into new agreements under the program as additional program funding becomes available. The authority will enter into agreements with registered projects on a first-come, first-served basis as determined by the order in which the projects were registered. A project successfully registered under the program will be considered to have priority as against other subsequently registered projects. However, registration under the program shall not obligate or otherwise bind the authority, or any other agency of the state, to execute a contract or issue tax incentives to an applicant under the program.
[Filed 7/24/20, effective 9/16/20]
[Published 8/12/20]
Editor’s Note: For replacement pages for IAC, see IAC Supplement 8/12/20.