Coverting rehabilitation tax credits into equity dollars.

Take a random walk through any urban metropolis and a person can expect to find at least one historic or pre-World War II building that is undergoing a major restoration. These rehabilitation projects cover the spectrum of possible uses, such as the rehab conversion of a vacant warehouse into spacious rental residential lofts, the restoration of a historic hotel to its original grandeur coupled with all the conveniences of contemporary culture, or the upgrade of an office building to luxury Class A office or apartment space.

These historic and pre-World War II buildings that were once the centerpieces of sprawling city environments are being restored through adaptive reuse and, thereby, rejuvenating many urban communities which had temporarily lost their way.

Through the Internal Revenue Code Section 47, the federal government offers lucrative rehabilitation tax credits to encourage preservation and adaptive reuse of both historic and pre-World War II buildings. The federal rehabilitation tax credit, a dollar-for-dollar reduction of federal income tax liability, is calculated as a percentage of the eligible rehabilitation expenditures. Federal tax law offers a 20% tax credit for substantial rehabilitations of certified historic buildings, and a 10% tax credit for substantial rehabilitations of non-historic, non-residential buildings built before 1936. A substantial rehabilitation means that a taxpayer's rehabilitation expenditures during a 24-month or 60-month measuring period must exceed the aggregate "adjusted basis" of the building. The adjusted basis is generally defined as the purchase price, minus the value (or cost) of the land, plus the value of any capital improvements made since the building acquisition, minus any depreciation already claimed. Because pr operties must be income-producing to qualify for federal rehabilitation tax credits, owner-occupied residences are not eligible.

The 20% rehabilitation tax credit program for historic buildings is administered by each state's historic preservation office and requires approval from the National Park Service, a division of the U.S. Department of the Interior. In contrast, the 10% rehabilitation tax credit for substantial rehabilitations of non-historic, non-residential buildings built before 1936 is a single IRS tax form submission and requires no federal or state involvement. In those cases where there is a choice to be made between these two types of rehabilitation tax credits, the building owner must weight the benefits of receiving double the tax credit amount against the incremental costs associated with adherence to The Secretary of the Interior's Standards for Rehabilitation when a building is either listed on the National Register of Historic Places or located in a National Register Historic District.

These tax credits can be either used to offset the building owner's federal tax liability or transferred to an institutional investor in exchange for additional equity capital that can be utilized for long-term financing of the project Because the Internal Revenue Code's Passive Activity Rules and Alternative Minimum Tax Regulations severely limit and, sometimes, prohibit the use of tax credits by individuals, many building owners syndicate the tax credits to a third-party institutional investor who can utilize the tax credits.

Prior to issuance of the certificate of occupancy and the official "in service" date, syndicated tax credit transactions require the tax credit investor to be admitted into a legal entity such as a limited partnership or limited liability company that will either own the building or hold a long-term operating lease on the building In these circumstances, the tax credit investor acts as either the limited partner or investor member while the building owner serves as either the general partner or managing member.

Recognizing the success of the federal program, several states have adopted legislation establishing state historic rehabilitation tax credits. Among the states that offer rehabilitation tax credits for historic preservation are Colorado, Connecticut, Florida, Indiana, Maine, Maryland, Michigan, Missouri, New Mexico, North Carolina, Rhode Island, Utah, Vermont, Virginia, West Virginia, and Wisconsin, with minors of pending legislation in other states such as California, New Jersey, New York, Oklahoma and Pennsylvania.

Now, more than ever, alternative forms of financing can mean the difference between a viable redevelopment project and one that never gets beyond the pre-development phase. Fortunately, rehabilitation tax credits can be converted into equity dollars serving as a practical secondary financing source.