Low-Income Housing Tax Credit: Joint IRS-HUD Administration Could Help Address Weaknesses in Oversight
Released: 2015-07-23T00:00:00

Letter

Background

The LIHTC program replaced older tax incentives, such as accelerated depreciation—that allowed taxpayers to deduct the costs of assets faster than their value actually declined—with a federal-state program in which HFAs receive LIHTC allocations of credits and award the credits to specific projects that meet requirements of Section 42 of the Internal Revenue Code (code). Prior to the establishment of LIHTC, federal housing assistance generally involved subsides or grants administered by HUD to construct new affordable housing and to make rents affordable in existing rental housing.

An LIHTC project owner can develop new housing or acquire and rehabilitate existing housing. The projects can be apartments, single- family housing, single-room occupancy, or permanent and transitional housing for the homeless. The project may include units for low-income households and market-rate units. The amount of credit received is based on the number of low-income units.

The project owners—the taxpayers receiving LIHTCs—agree to set aside a certain percentage of the units with rents that are affordable to qualifying low-income households for at least 30 years. A project must reserve at least 20 percent of the available units for households earning up to 50 percent of the area’s median gross income (adjusted for family size), or at least 40 percent of the units for households earning up to 60 percent of the area’s median gross income (adjusted for family size). HUD and Treasury officials noted that in practice, LIHTC projects usually exceed these minimum affordability requirements by setting aside nearly all of their units for low-income households.

In return, taxpayers can earn a tax credit over a 15-year period (the compliance period) if they meet the affordability requirements, but can claim the credit over an accelerated time frame (the 10-year credit period), beginning in the year in which the property is placed in service (ready for occupancy) or, if the taxpayer chooses, the succeeding taxable year. IRS can recapture (take back) some or all of the credits received by taxpayers if the taxpayers have not met the requirements during the compliance period. In addition, properties awarded credits after 1989 must comply with the affordability requirements for at least another 15 years (the extended use period) but are no longer subject to recapture after the compliance period. HFAs may impose longer affordability restrictions on properties than the minimum 30-year period. The three time periods begin on the same day—the first day of the tax year in which the building is placed in service, or if taxpayers elect, the beginning of the following tax year. The allowable credit may be reduced (in part or in whole) for the tax year if taxpayers were not compliant with the code requirements. Taxpayers also may be subject to the recapture of credits claimed in prior years.

LIHTC is administered by IRS and state HFAs. To promote compliance with LIHTC program requirements, IRS is the federal entity responsible for (1) enforcing taxpayer compliance and (2) overseeing HFAs’ implementation of the program. All 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands have HFAs that receive LIHTC allocations.

HUD’s role includes mandatory and voluntary data collection on the LIHTC program. More specifically, the agency has collected information on tenant characteristics, as mandated by the Housing and Economic Recovery Act of 2008. In addition, since 1996, HUD has voluntarily collected LIHTC project-level data because of the importance of these credits as a source of funding for low-income housing. HUD also has a role in designating difficult development areas and qualified census tracts. Figure 1 provides an overview of the LIHTC process and participants.

HFAs competitively award credits. HFAs competitively award tax credits to developers or owners of qualified projects that reserve all or a portion of their units for low-income tenants. HFAs award the credits in accordance with qualified allocation plans (QAP) that outline states’ affordable housing priorities and ranking and selection procedures for projects.

Developers apply to HFAs for tax credits. To apply for tax credits, a developer must submit a detailed proposal to an HFA. To qualify for consideration, a project must meet certain requirements, such as reserving specified percentages of available units for lower-income households and restricting rents for these households to 30 percent of a calculated income limit.

Investors provide equity and receive tax benefits. Developers typically attempt to obtain funding for their projects by attracting third-party investors willing to contribute equity financing (up-front cash) to projects. The developer sells an ownership interest in the project to one or more investors, or in some instances, to a syndicator acting as a broker between the developer and investor(s). Tax credit investors can be individuals, but the vast majority of investments have come from corporations, either investing directly or through private partnerships. Although investors buy an interest in an LIHTC partnership, this process is commonly referred to as buying tax credits because the investors receive tax credits in return for their investment (providing that the building is developed and operated according to code requirements).

Syndicators pool projects, recruit investors, and provide services. Syndicators, when involved, are intermediaries that often administer tax credit deals and charge a fee for overseeing the investment transaction. Syndicators pool several projects into one tax-credit equity fund and recruit investors willing to become partners in LIHTC partnerships. The investor, as a limited partner, has a large ownership percentage in the property but otherwise is not directly involved in project development. Syndicators provide legal and accounting services required to pool the tax credits, monitor projects for the investors, and sometimes fund reserves for legal and administrative costs.

IRS Offices Involved in LIHTC Program Oversight

IRS administers the LIHTC program primarily within one division, with assistance from other offices and units (see fig. 2).

The Small Business/Self-Employed Division (SB/SE) primarily administers the LIHTC program. One full-time program analyst develops internal protocols, provides technical assistance to HFAs, and provides community outreach to industry groups and taxpayers (developers/owners and investors).

In related activities, one staff member in the Low-Income Housing Credit compliance unit (compliance unit) assists in determining if tax returns may warrant an audit. An additional 5.6 full-time equivalents, also from the compliance unit, assist in reconciling LIHTC forms from HFAs and taxpayers to identify potential inconsistencies and populate IRS’s Low-Income Housing Credit database. The database has been used to record information from certain IRS forms submitted by HFAs and taxpayers.

The Office of Chief Counsel, within the Commissioner’s office, provides technical assistance for the LIHTC program and determines the amount of credit available for the national pool—the amount of unused housing credit carryovers allocated to qualified states for a calendar year from a pool of unused credit. According to IRS officials, six attorneys work part-time on the LIHTC program.

IRS Responsible for Oversight of HFAs and Taxpayers, and HFAs Make Award Decisions and Monitor Projects

IRS administers the LIHTC program by developing regulations and guidance and is responsible for overseeing HFAs and taxpayer compliance. HFAs award tax credits to qualified projects, determine the credit amounts needed for financial feasibility of the projects, and monitor project compliance. The design of the LIHTC program can result in other entities—private and public—providing additional types of monitoring of LIHTC projects; examples include investors and syndicators performing due diligence in relation to a project’s viability and eligibility for tax credits.

IRS Regulatory and Oversight Responsibilities for LIHTC

IRS administration of the LIHTC program involves developing and publishing regulations and guidance as well as overseeing compliance on the part of HFAs and taxpayers. The IRS Office of Chief Counsel, with assistance from Treasury’s Office of Tax Policy, develops and publishes regulations and guidance based on requirements in the code. Published guidance may include revenue rulings and procedures, notices, and announcements. Other guidance for the program includes an Audit Technique Guide for Completing Form 8823—the report on noncompliance or building disposition, on which HFAs record findings after inspecting projects—and an Audit Technique Guide for Low-Income Housing Credit. The guide for completing form 8823 includes specific instructions for HFAs on when desk audits, site visits, and file reviews are to be performed; how to complete the form; and guidelines for determining noncompliance in areas such as health and safety standards, rent ceilings, income limits, and tenant qualifications. The purpose of the guide is to provide standardized operational definitions of noncompliance categories. The Low-Income Housing Credit guide is a manual developed to assist IRS examiners who conduct audits of taxpayers receiving LIHTCs. The guide discusses topics ranging from examination techniques to specific issues pertinent to the LIHTC program.

IRS oversight covers allocation of LIHTCs by HFAs and taxpayer compliance (see fig. 3). One full-time analyst monitors the program with assistance from the compliance unit. The compliance unit staff review information on three IRS forms that are the basis of LIHTC program reporting for HFAs and taxpayers. IRS is responsible for reviewing the forms and using them to determine whether program requirements have been met. Specifically, IRS compliance unit staff and the program analyst review the following:

Compliance unit staff review information on credit allocation and certification (form 8609). The two-part form is completed by the HFA and the taxpayer. HFAs report the allocated amount of tax credits available over a 10-year period for each building in a project. The taxpayer reports the date on which the building was placed in service. IRS staff use a checklist to record information that might warrant additional review by the program analyst, such as discrepancies in the number of tax credits the HFA and the taxpayer reported. They also enter the information from this form in IRS’s Low-Income Housing Credit database.

The compliance unit uses a checklist to review noncompliance or building disposition (form 8823). HFAs must complete the form after conducting an on-site physical inspection of an LIHTC project if any noncompliance is found. All projects must be inspected by HFAs at least every 3 years (including at least 20 percent of low-income units). The form records any findings (and corrections of previous findings) based on the inspection of units and review of the low-income certifications. According to IRS’s guide for completing form 8823, when findings are identified by HFAs and reported to IRS, the compliance unit must notify the owner of the noncompliance issues. In addition, the compliance unit determines if the identified noncompliance may warrant consideration of a taxpayer audit by IRS. If so, the compliance unit will forward an audit consideration package for the program analyst’s review. The program analyst then determines the audit potential of the taxpayer. If an audit were needed, the program analyst would forward the audit package to the relevant IRS audit examination division—such as SB/SE—and monitor the status of the audit.

The compliance unit staff review the allocations each HFA reports as having been made on the HFA annual report (form 8610) to ensure allocations do not exceed a statutorily prescribed ceiling for that year. IRS officials stated that the Office of Chief Counsel reviews all the 8610s and reports the state housing credit ceiling in published guidance for the upcoming year. HFAs also use the form to report whether they have met certain program requirements, such as confirming that their QAPs contain monitoring procedures and affirming the completion of LIHTC project monitoring. HFAs generally complete the form by the end of February of each year. The program analyst then reviews the information and follows up with HFAs as necessary.

HFAs Are Responsible for Awarding Tax Credits and Monitoring LIHTC Projects

IRS relies on HFAs to administer and oversee the LIHTC program in their states. In addition to awarding tax credits to qualified projects, HFAs are responsible for: determining the amount of credit needed for the financial feasibility of each project and its viability as a qualified low-income housing project through the 10-year credit period. HFAs make determinations (1) when the application is received, (2) when the allocation of the credit is completed, and (3) when the building is placed in service and the taxpayer submits a final cost certification. monitoring LIHTC properties for compliance with program requirements (for example, health and safety standards, rent ceilings, income limits, and tenant qualifications). Findings from HFA monitoring are provided to IRS on noncompliance or building disposition (form 8823). Taxpayer noncompliance with LIHTC requirements may result in IRS denying claims for the credit in the current year or recapturing—taking back—credits claimed in prior years.

Once IRS monitoring of LIHTC projects ends after year 15, HFAs have sole authority to monitor compliance for at least another 15 years, and the taxpayer must ensure that the project continues to meet program requirements, as defined in the project’s extended use agreement with the HFA. If a project were found to be noncompliant, the HFA could take action, such as litigation under state law.

LIHTC Projects Also May Be Monitored by Other Entities

The design of the LIHTC program (for instance, the roles of investors and syndicators) can result in other entities—private and public—providing additional types of monitoring of LIHTC projects. Investors and syndicators not only provide financing for LIHTC projects, but also provide project oversight to help ensure that they receive the expected tax credits over the designated period. For instance, an LIHTC investor needs to make sure the property is suitable for occupancy and rented to qualified low-income families at restricted rents during the initial 15-year period. To mitigate risk before investing, the investor and syndicators will underwrite and screen properties for quality and sustainability. For example, the investor may ensure the development team has adequate resources to build and operate the property and that mechanisms are in place to avoid foreclosure. Additionally, because of the amount of capital that can be involved in projects, investors may require additional testing and auditing beyond what is required by the program. Investors and syndicators also may maintain a list of properties to more closely monitor based on identified performance measures. However, findings from investors and syndicators typically are not shared with the public or federal agencies, according to Treasury officials.

LIHTC projects also can receive funds from other federal programs and be subject to monitoring requirements of those programs—for example, HUD’s HOME and project-based Section 8 rental assistance programs. According to a 2012 industry survey of HFAs with LIHTC projects that received other federal funds, an average of about 20 percent of the units received HOME funds and an average of about 18 percent received project-based Section 8 rental assistance. The monitoring conducted for the other programs provides additional information that could be useful for IRS in monitoring LIHTC projects. However, IRS officials stated they do not review findings on HFAs that other programs identified but rather focus on ensuring completion and submission of IRS tax forms. Examples of monitoring requirements from these programs include the following:

For HOME, HUD requires that participating jurisdictions conduct on- site physical inspections of projects every 1, 2, or 3 years, depending on the size of the project. These site visits also require reviews of program and project files. HUD approves the use of grant funds by reviewing a state or locality’s consolidated plan, which identifies needs, sets priorities, determines resources, and sets goals.

For project-based Section 8 rental assistance, performance-based contract administrators (entities such as HFAs and public housing authorities) assist HUD in overseeing individual Section 8 properties and ensure that properties are in compliance with HUD policies. The contract administrators must perform annual management and occupancy reviews for all their assigned properties and conduct monthly reviews of all payment vouchers submitted by property owners. For example, the contract administrators conduct on-site reviews of property owners’ tenant information files and ensure property owners provide complete and accurate tenant data to HUD. HUD’s oversight of the contract administrators can include reviews of status reports of performance-based administrators and annual compliance reviews, which determine the compensation of the contract administrator.

In addition to specific program requirements, HUD program participants must comply with several federal civil rights requirements, including the Fair Housing Act and Americans with Disabilities Act. Such requirements prohibit discrimination in the administration of housing subsidies and require buildings to be designed and constructed in an accessible manner, located in appropriate sites and neighborhoods, and marketed equally to all potential tenants. For certain requirements, officials told us that HUD routinely monitors program participants. For others, HUD uses an administrative complaint procedure to identify candidates for reviews. HUD’s monitoring consists of a combination of file reviews and site visits.

HFAs also have used funding from the Tax Credit Assistance Program (TCAP), administered by HUD, and the Grants to States for Low-Income Housing Projects in Lieu of Low-Income Housing Credits (Section 1602) program, administered by Treasury. The LIHTC program was severely disrupted in 2008–2009 (in the midst of the financial crisis), when the demand for the credits and the price investors were willing to pay for them declined. TCAP and Section 1602 provided gap financing to fill the equity gap that resulted from lower LIHTC prices, allowing stalled “shovel-ready” projects to proceed. The two programs no longer actively fund new projects, but as of May 2015, compliance monitoring of funded projects remained ongoing.

The TCAP and 1602 programs require more compliance monitoring than traditional LIHTC projects; for example, of asset-management functions the HFAs perform. HUD and Treasury also have used a risk-based approach to monitor TCAP and 1602 projects. For example, HUD determined that TCAP projects that had less than $10,000 in LIHTC investment and no other federal funding sources might be at higher risk of noncompliance. HUD officials explained these TCAP projects were considered higher-risk due to the potential of less oversight from other private and public entities. Treasury reviewed HFAs for compliance in the first year of the Section 1602 program. Then Treasury used a risk-based approach to identify HFAs for subsequent reviews (they would merit additional monitoring if noncompliance issues were identified in the first review). Thereafter, on an annual basis during the compliance period, HFAs have to certify to Treasury that they performed all required compliance monitoring activities and report to Treasury the results of these activities for each project.

Finally, unlike LIHTC, some of these grant programs—HOME, project- based Section 8 rental assistance, and TCAP—are considered federal financial assistance by the Single Audit Act, and thus are subject to an annual single audit by a third party. Annual external audits must include a review of financial statements and internal controls and adherence to program compliance requirements.

IRS Oversight to Identify and Address Compliance Issues Has Been Minimal

IRS performed minimal oversight of HFAs, particularly in relation to reviewing QAPs and assessing HFA compliance. IRS conducted some audits of taxpayers claiming the tax credits, but does not have detailed information on the results of these audits. Moreover, IRS has not set goals or assessed performance for the program. Finally, data in IRS’s Low-Income Housing Credit database were not complete and reliable for assessing compliance.

IRS Oversight of HFAs Has Been Minimal

IRS oversight of HFAs has been minimal, particularly in terms of reviewing QAPs and conducting on-site or desk audits of HFAs. Federal internal control standards state that internal control helps program managers achieve desired results. Monitoring, one of the internal control standards, should occur in the course of normal operations, be performed continually, and be ingrained in the agency’s operations.

IRS officials stated they did not regularly review QAPs as part of their compliance monitoring of the HFA annual report (form 8610). IRS’s review of HFAs included a review of responses on the annual report related to compliance monitoring procedures in the QAP and frequency of monitoring conducted by the HFA. However, in addition to these requirements, the code includes requirements for selecting projects and ensuring a QAP is approved by the state governing agency. Yet, IRS has not conducted regular reviews of QAPs to determine how HFAs interpreted the code to select projects, if the QAPs included the required compliance monitoring, or if the QAPs had been approved. As a result of minimal monitoring, IRS does not know the extent of compliance monitoring by HFAs, which limits its ability to determine if the HFAs appropriately awarded credits to projects.

Moreover, IRS and Treasury were unclear about how to handle instances in which a QAP did not meet requirements in the code. Some Treasury and IRS officials stated that Treasury would have to invalidate all credits allocated to an HFA if the QAP did not meet requirements, which could affect awarded projects across multiple years. In contrast, IRS has reported in audit-related documents that an HFA’s authority to allocate tax credits should be revoked only when IRS determined that the HFA’s noncompliance was widespread and willful. The documents suggest that such revocation most likely would be applied prospectively to limit the tax consequences for taxpayers.

IRS has performed few on-site or desk audits of the 56 HFAs—it audited a total of 7 HFAs—from the program’s inception in 1986 through May 2015. According to an IRS summary report of all HFA audits conducted from 2003 to 2014, the agency generally selected which HFAs to audit based on press accounts and HFA self-reporting about lack of adherence with compliance requirements. IRS officials also stated that HFAs increasingly have missed the February 28 deadline to submit the annual report (form 8610) and often submit incomplete or inaccurate forms. The summary report recognized that conducting ongoing audits is a necessary component of LIHTC program administration. The report also notes continued audit presence would reinforce the importance of HFA compliance with requirements in the code and provide an opportunity for IRS to address deliberate noncompliance by HFAs.

The scope and methods of the reviews varied based on the types of noncompliance the IRS program analyst identified. For instance, on one audit the program analyst selected a sample of files on which to conduct an in-depth review of HFA compliance activities. In another, the program analyst enlisted the assistance of a field agent to review the HFA’s internal controls for record keeping and credit allocation, among other areas. The other audits were desk audits. Examples of the audit findings include the following:

Written HFA policies conflicted with the requirements in the code or Treasury regulations.

The QAP did not address all compliance requirements in the regulations or was outdated.

Annual report to IRS had errors, such as incorrect credit allocations and overstated numbers of inspections and reviews.

The HFA failed to submit form 8823 as required to report LIHTC noncompliance.

Physical inspections and tenant file reviews were not completed as required and notifications to owners were not conducted as required.

All but one audit was closed at the time of our review.

IRS cited multiple reasons for not conducting regular reviews of QAPs and audits of HFAs. First, IRS officials stated that they did not regard a regular review of QAPs as a part of their compliance responsibilities. Second, IRS officials stated that because of other priorities the agency does not have a sufficient number of LIHTC staff or other assigned resources to conduct more audits of HFAs. IRS has statutory authority to collect up to a $100 annual penalty from each HFA failing to file a timely, accurate annual report. However, IRS officials said the agency concluded that penalty collection would not be cost-effective because more resources would be needed to collect the penalty than would be gained through collection and that increasing the penalty amount would require statutory change. Third, IRS officials stated that they had considered involving IRS field office staff to conduct more HFA audits over the years, but due to competing demands at IRS, this did not occur. The lack of QAP reviews and audits of HFAs means that IRS is unable to determine the extent to which HFAs meet requirements for awarding tax credits and monitoring project compliance.

IRS Has Conducted Some Audits of Taxpayers Claiming LIHTCs but Does Not Have Detailed Information on Results of These Audits

IRS has conducted some audits of taxpayers claiming LIHTCs, but does not have detailed information on these audits. In a 1997 report, we found that IRS did not have an estimate of taxpayer compliance for the LIHTC program and recommended that IRS explore alternative ways to evaluate compliance with the requirements of the code by taxpayers. In 2000, IRS had completed a review of a sample of 402 audits of LIHTC taxpayers performed from 1995 through 1999 (an average of about 100 audits annually to determine a compliance level by taxpayers claiming the credit and types of noncompliance). According to IRS, the review did not find evidence of widespread noncompliance with the code. Officials also stated the agency had not updated this review since 2000—15 years ago—because IRS had been proceeding with the understanding that nothing had changed with the compliance level.

According to IRS, the agency completed 555 additional audits (an average of about 40 audits annually) of taxpayers claiming LIHTCs from 2001 through 2013. About 29 percent of these audits resulted in no change to the amount of credit claimed by the taxpayer or recapture of the credit. For the remaining audits, the taxpayer agreed to make changes to the credit claimed (about 24 percent); IRS no longer pursued the case (about 23 percent)—for example, because the statute of limitation was within 1 year of expiring; IRS continued to audit the taxpayer (about 10 percent); or IRS closed the case because the taxpayer disagreed with the audit results and requested adjudication (about 10 percent). According to IRS officials, competing audit priorities have limited the number of LIHTC taxpayer audits conducted.

Detailed information on the results of the audits of taxpayers claiming LIHTCs have not been shared with LIHTC staff. More specifically, IRS examiners have not provided information on types and trends in noncompliance or the amount of credit changed or recaptured. In June 2002, we concluded that tracking audit findings and identifying commonly occurring issues could be valuable in helping management evaluate agency oversight, monitor activities, and identify problem areas. Moreover, we have consistently stressed the importance of IRS conducting tax compliance research to understand the extent and causes of taxpayer noncompliance and use the results to review audit examination programs. LIHTC staff stated they have not maintained a database on outcomes of audits (such as types of and trends in noncompliance), the recapture of tax credits or adjustments of credit for compliance monitoring purposes, or coordinated within IRS to monitor recapture of the program credit. As a result, information on commonly occurring issues and reasons for taxpayer noncompliance related to the LIHTC program is not available to inform the program analyst responsible for overseeing the program.

IRS Has Not Set Goals for LIHTC and Does Not Assess Performance

Although IRS is the only federal agency responsible for overseeing LIHTC program compliance, it does not set goals or assess performance for the program. Federal internal control standards state activities need to be established to monitor performance measures and indicators, which includes comparing data so that analyses can be conducted, as appropriate. We previously reported that data availability was a challenge in assessing tax expenditure performance. IRS collects limited data that it needs to administer and enforce the code. It does not use the information it collects to assess the housing production program, such as the number and location of LIHTC projects. (We discuss IRS’s Low-Income Housing Credit database in more detail later in this report.)

HUD’s role in the LIHTC program is generally limited to the collection of information on tenant characteristics (mandated by the Housing and Economic Recovery Act of 2008). However, it has voluntarily collected project-level information on the program since 1996 because of the importance of LIHTC as a source of funding for affordable housing. HUD also has sponsored studies of the LIHTC program that use these data. HUD’s LIHTC databases, the largest federal source of information on the LIHTC program, aggregate project-level data voluntarily submitted by HFAs and the tenant characteristic information HUD must collect. In our December 2012 report on the LIHTC program, we found that HUD’s LIHTC databases were incomplete and missing data on many projects. We recommended HUD evaluate and implement additional steps to improve the database, which could improve the federal government’s ability to evaluate basic LIHTC program outcomes. HUD agreed and has since implemented our recommendation by taking steps to identify potential gaps in its database. For example, in December 2014, HUD published a report analyzing data it must collect on tenants residing in LIHTC properties. As part of this report, HUD compared property information in its tenant database to the information in its property database to help assess the completeness of both databases.

Furthermore, HUD has been limited in its ability to report complete information on how the LIHTC program contributed toward meeting agency priority goals and broader, federal housing goals. The Office of Management and Budget’s 2014 guidance on content for strategic plans, annual performance plans, and annual performance reports directs agencies to include tax expenditures in their identification of organizations and programs that contribute to agency priority goals (areas of special focus as determined by the agency administration). HUD has strategic goals to meet the need for quality affordable rental homes and build strong resilient and inclusive communities. HUD also has a priority goal to preserve and expand affordable rental housing. HUD’s fiscal year 2013 annual performance report and 2015 annual performance plan included a performance measure that accounted for LIHTC projects with HUD- insured mortgages in its agency priority goal. Overall, HUD’s goals call for continuing to assist about 5.5 million households living in subsidized housing and serving approximately 62,000 additional households through affordable rental housing programs. However, officials said data used to support these goals do not include all LIHTC units, but only those units that have HUD mortgage insurance. HUD has a separate process for collecting LIHTC information for HUD-insured properties and does not rely on any of the existing databases on LIHTC.

In our May 2011 glossary on performance measurement and evaluation, we stated that performance measurement can serve as an early warning system to program management because of its ongoing nature and as a vehicle for improving performance and accountability to the public. Information about the extent to which an intended purpose has been met also can contribute towards broader evaluations of how well a program has been working and actions that could be taken to improve results. Basic information on results, such as the number and location of LIHTC projects, is limited. Without goals and performance measures, decision makers do not have sufficient information to assess the results or the effectiveness of the program as a tool to maintain affordable housing.

IRS Data Were Not Reliable to Assess Compliance and Taxpayer Protections Prevent HUD from Using IRS Data

IRS had not comprehensively captured information reported for the program in its Low-Income Housing Credit database and the existing data were not complete and reliable. IRS guidance requires the collection of data on the LIHTC program in an IRS database. The IRS database records information submitted by HFAs and taxpayers on three forms— credit allocation and certification (form 8609), HFA report of noncompliance or building disposition (form 8823), and HFA annual reports (form 8610)—and IRS mainly uses the data to reconcile program information submitted and identify taxpayers for audit.

Data on Credit Allocation and Certification Not Reliable

Based on our analysis of the information in the database, the data on credit allocation and certification information were not sufficiently reliable to determine if basic requirements for the LIHTC program were being achieved. Federal internal control standards state that effective information technology management is critical to achieving useful, reliable, and continuous recording and communication of information. However, our electronic testing of IRS data found instances in which allocation dates and placed-in-service dates were incorrectly entered in the database, which highlighted problems with how the data elements were entered into the database from paper forms. Automatic edit checks to ensure that the date fields entered are reasonable were not fully implemented, although IRS’s database user guide describes the use of such checks. Officials stated they did not become aware that the edit checks were not working until our assessment of the data. The programming of the edit checks contained errors, which prevented them from working correctly. IRS officials agreed that these problems should be corrected and data quality reviews conducted on an ongoing basis. Because IRS has not regularly assessed the credit allocation and certification information (form 8609) for errors and conducted management review of the data, we could not determine how often LIHTC projects were placed in service within required time frames. Without improvements to the data quality of credit allocation and certification information, it is difficult to determine if credit allocation and placed-in- service requirements have been met by HFAs and taxpayers, respectively.

Moreover, we found IRS guidance requires information from the HFA report of noncompliance or building disposition (form 8823) and the HFA annual reports (form 8610) to be captured in the Low-Income Housing Credit database. However, based on our review of the database, the information was partially captured for the noncompliance form and not captured for the HFA annual reports.

More specifically, we could not determine the types or frequency of project noncompliance from data available on the HFA reports on noncompliance or building disposition (form 8823). According to IRS, the agency has received approximately 168,000 noncompliance or building disposition forms since 2009 but the database included about 3,100 records (about 2 percent of records received). Officials told us the decision was made in 2008–2009 to input information only from forms that indicated a change in building disposition, such as the foreclosure of a project. IRS focused on forms indicating a change because of the serious nature of these occurrences for the program, the impacts on taxpayers’ ability to receive credit, and greater prevalence of these occurrences as a result of the economic downturn. Additionally, when IRS upgraded its database in 2008 a large backlog of un-entered information existed (the database was offline from 2005 to 2008); however, officials realized their operations were not affected by the lack of information. Officials further explained it was not cost-effective to input information received from all forms 8823 into the database because the need for trend analysis on all types of noncompliance was not useful for purposes of ensuring compliance with the tax code. However, officials stated they have not performed any cost estimates to determine the cost of inputting such information.

The database does not contain information from HFA annual reports (form 8610). IRS officials stated there were plans to include this information in the database from 2009 to the present, but due to competing priorities for limited resources, it has not yet been added.

Restrictions on Information Sharing

Statutory restrictions in the Internal Revenue Code prevent the disclosure of taxpayer information to other federal agencies, such as HUD, that may make more use of the data. For LIHTC, taxpayer protections restricting disclosure of taxpayer information generally prohibit IRS from sharing data it collects on the LIHTC program with HUD. HUD officials said they experienced difficulties obtaining data from IRS to help ensure the completeness of their data because of issues related to protections for taxpayer information. The code does not specifically give IRS the authority to provide information to HUD so that HUD can assess the completeness of the data it receives from HFAs on tenant characteristics or other data elements in HUD’s LIHTC database for the program.

Nevertheless, Congress has granted some statutory exceptions to the provisions relating to confidentiality while balancing the expectation of taxpayer privacy with the policy goals of efficient use of federal resources, public health and welfare, and law enforcement. IRS staff suggested internally that Congress create such an exception for the LIHTC program, authorizing IRS to provide HUD with protected information on LIHTC buildings and enabling HUD to assess the completeness of the LIHTC tenant information it collects. In that case, HUD could then review its databases, compare the information against the IRS data, determine what information it was missing on tenant characteristics, and follow up with the HFA as necessary. According to officials, neither IRS management nor Treasury (which must present all administration proposed tax legislation) has yet received this internal proposal.

LIHTC Administration Differs from Some Other Tax Credit Programs

LIHTC administration differs from some other tax credit programs that are jointly administered by IRS with another federal agency. The other federal agencies conduct monitoring, report on performance, collect data, and have missions consistent with the purposes of the programs. HUD’s experience in affordable housing and working with HFAs may benefit the LIHTC program. More specifically, HUD’s rental housing programs rely on state and local housing agencies (including HFAs) to implement programs. A greater involvement of HUD in the LIHTC program may help alleviate the oversight challenges cited in this report. But joint federal administration may require additional resources for HUD.

IRS Jointly Administers Some Tax Credit Programs with Other Federal Agencies

In some cases, IRS jointly administers tax credit programs with other federal agencies that provide key oversight and administrative support, such as monitoring, performance measurement, and data collection. Specifically, we identified two programs—the Historic Rehabilitation Tax Credit and the New Markets Tax Credit—in which federal administration of the programs is shared between IRS and another agency (see table 1 for overview).

We discuss the Historic Rehabilitation Tax Credit and the New Markets Tax Credit programs in greater detail below, focusing on differences with how IRS oversees LIHTC—such as describing how the other federal entities monitor and assess program performance.

Historic Rehabilitation Tax Credit Program The Historic Rehabilitation Tax Credit program promotes the rehabilitation of historic properties. For this credit, developers planning to rehabilitate “certified historic structures”—buildings listed in the National Register of Historic Places or located in a registered historic district and certified by the National Park Service (NPS) as contributing to the historic significance of that district—can apply for certification to NPS through their local State Historic Preservation Officer for tax credits in the amount of 20 percent of the certified rehabilitation costs.

Historic Rehabilitation Tax Credit. The National Park Service’s Technical Preservation Services (TPS) administers the Historic Rehabilitation Tax Credit program, which cost an estimated $580 million in forgone revenue in fiscal year 2014. TPS promulgates the Secretary of the Interior’s Standards for Rehabilitation (standards), to which renovation projects must conform to be eligible for rehabilitation tax credits. TPS, in consultation with State Historic Preservation Officers (SHPO), also reviews and approves proposed rehabilitation project designs, and (again in consultation with SHPOs) certifies completed rehabilitation projects as conforming to the standards and therefore eligible to claim the rehabilitation tax credit.

TPS officials explained that to administer the Historic Rehabilitation Tax Credit program, the agency currently relies on 17 full-time equivalent positions to staff the program and has a budget of approximately $3.2 million for fiscal year 2015. Additionally, TPS officials stated they planned to add 4–5 full-time equivalent positions to the program, for a total of 21 or 22. TPS officials explained that they work with IRS to coordinate elements of program administration, which include the issuance of regulations, the development of program information (such as on revenue procedures) for TPS’s website, and training for SHPOs. TPS also shares program data with IRS, including biannual reports of all program activity drawn from the project database for the Historic Rehabilitation Tax Credit, and information about issues and concerns surrounding an individual project’s eligibility for the credit.

New Markets Tax Credit Program Congress established the New Markets Tax Credit to encourage investments in low- income communities that traditionally lack access to capital. The program provides investors (individuals, financial institutions, and other corporations) with a tax credit for investing in these communities. The investors can claim a credit equal to 39 percent of eligible investment spread over 7 years.

New Markets Tax Credit. The CDFI Fund, housed in Treasury, plays the lead role in administering the New Markets Tax Credit program, which had about $1 billion in forgone revenue in fiscal year 2014. The Fund certifies qualified organizations as Community Development Entities (CDE)—which are entitled to offer these tax credits to investors to attract private-equity investments to low-income community development projects. The Fund also reviews CDE applications for allocations of specific amounts of the New Markets Tax Credit and—for those CDEs receiving such allocations—prepares allocation agreements that include the amount of tax credit allocation, approved uses of the allocation, approved service area, and reporting requirements.

According to CDFI Fund officials, 15 full-time equivalent positions—14 staff and one manager—work full time on New Markets Tax Credit and another Treasury program, with the majority of staff time devoted to New Markets Tax Credits. These employees are assisted at various times by other CDFI Fund staff—for example, legal staff who help to execute allocation agreements with CDEs and information technology staff who maintain database systems.

In both programs, we identified oversight and administrative functions (monitoring, performance measurement, and data collection) that federal entities other than IRS perform.

Monitoring

TPS and the CDFI Fund have primary roles in monitoring programmatic aspects of the Historic Rehabilitation Tax Credit and New Markets Tax Credit, while IRS administers and enforces compliance with tax-related requirements. Conversely, in the LIHTC program, the monitoring role is split between IRS and HFAs. While IRS has other monitoring responsibilities for the LIHTC program (beyond ensuring taxpayer compliance) that include overseeing HFAs, as discussed previously, such monitoring was lacking or minimal.

Historic Rehabilitation Tax Credit. TPS officials told us that TPS staff members take approximately 25 work trips annually to states for purposes such as site visits and training for SHPOs. Site visits typically involve inspections of multiple projects, including projects identified as good and as problematic, as well as projects that are proposed, under way, and completed. TPS officials stated that when they identify deficiencies in a SHPO’s administration of a Historic Rehabilitation Tax Credit project, they generally work cooperatively with SHPOs to identify and take corrective actions.

New Markets Tax Credit. CDFI Fund staff told us they conduct two types of site visits to CDEs that are performed by different program offices.

The New Markets Tax Credit program office conducts site visits to gather information about current industry practices, tax credit transaction costs, best practices in accomplishing outcomes the CDFI Fund seeks to encourage (such as investing in nonmetropolitan counties and financing projects that create significant community outcomes), and emerging trends and practices the CDFI Fund may want to discourage. The information obtained during these site visits enables the New Markets Tax Credit staff to administer the program by informing the contents of the tax credit allocation application or allocation agreement, or the review and selection process.

The Certification, Compliance Monitoring and Evaluation unit conducts risk-based site visits. The purpose of these visits includes determining if a New Markets Tax Credit project was in compliance with the terms and conditions of its allocation agreement, assessing circumstances leading to an instance of noncompliance, and identifying any weaknesses or concerns that may adversely affect the use of the tax credit allocation. If noncompliance were in question, the focus of the site visit would be to determine what, if any, corrective actions were taken by the CDE and progress made in resolving the noncompliance, implementing the corrective action, or both.

Performance Measures and Data Collection

TPS and the CDFI Fund collect and report performance measures and collect data for the Historic Rehabilitation Tax Credit and New Markets Tax Credit programs, respectively. In contrast, IRS does not report on performance measures on the LIHTC program; rather, it collects data from tax forms to oversee HFA program compliance and taxpayer compliance. As discussed previously, statutory limitations prevent the sharing of data from tax forms with other federal agencies.

Historic Rehabilitation Tax Credit. TPS publishes an annual report and a statistical analysis of the Historic Rehabilitation Tax Credit program. Both reports include performance measures such as the number of jobs created in association with completed projects and the number of housing units created with Historic Rehabilitation Tax Credits, including the number of low- and moderate-income units. The statistical analysis contains additional detail about the performance measures, historical data, and state-by-state breakdowns related to qualified rehabilitation expenditures. In addition, TPS collaborates with Rutgers University to produce the Annual Report on the Economic Impact of the Federal Historic Tax Credit. According to TPS officials, to produce these reports, TPS uses data obtained from the project applications, voluntary user profiles, and customer satisfaction questionnaires submitted upon project completion. TPS— unlike HUD in relation to the LlHTC program—has not encountered data-sharing limitations with IRS stemming from protections on taxpayer information because it collects these data using its own forms and documentation.

New Markets Tax Credit. The CDFI Fund uses its Community Investment Impact System to collect data from CDEs on projects, including performance measures such as the number of jobs by type; numbers of rental and for-sale housing units; and the capacity of educational, child care, and health care facilities developed using New Markets Tax Credit financing. These data are not collected on IRS forms. The data are used to produce annual research reports and periodic research briefs. In addition, the CDFI Fund contracted with the Urban Institute to conduct a formal evaluation of the New Markets Tax Credit program, focusing on program design, execution, outputs, and outcomes.

HUD’s Experience in Affordable Housing and Working with HFAs May Benefit the LIHTC Program

While multiple federal agencies administer housing-related programs, HUD is the lead federal agency for providing affordable rental housing. HUD’s fiscal year 2013 annual performance report and 2015 annual performance plan reported that it funded about 5.5 million occupied affordable rental units through its rental assistance programs. Much like LIHTC, HUD’s rental housing programs rely on state and local housing agencies (including HFAs) to implement programs. HUD is responsible for overseeing these agencies, including reviewing state and local consolidated plans for the HOME and Community Development Block Grant (CDBG) programs—large grant programs that HUD oversees and that also are used to fund LIHTC projects. HUD has experience in directly overseeing HFAs in their roles as contract administrators for project-based Section 8 rental assistance. HUD also has entered into risk-sharing agreements with HFAs to provide more insurance on multifamily loans. Although we and HUD’s Office of Inspector General have identified weaknesses in evaluation and oversight of programs, HUD has taken steps to resolve some of these issues. Furthermore, HUD has processes, procedures, and staff in place for program evaluation and oversight of state and local agencies that could be built upon and strengthened.

HUD already has a limited data collection role in the LIHTC program. As described earlier, HUD voluntarily maintains data on LIHTC properties and must collect data on tenant characteristics such as race and income. Unlike IRS, HUD also has sponsored studies of the LIHTC program based on the data it collects. Furthermore, HUD has strategic goals to meet the need for quality, affordable rental homes and build strong resilient and inclusive communities, and an agency priority goal to preserve and expand affordable rental housing. However, data used to support these goals do not include all LIHTC projects. With the exception of these activities, HUD has no statutory authority to oversee HFAs’ LIHTC program responsibilities or set LIHTC program policies and procedures, and as a result, such authority would require new enabling legislation.

HUD’s experience in administering affordable housing programs may help address some of the oversight challenges for LIHTC cited in this report. Although joint administration of the program will involve dividing responsibilities for one program across two agencies, we have reported that mission fragmentation and program overlap sometimes may be necessary when the resources and expertise of more than one agency are required to address a complex public need—as in the case of the Historic Rehabilitation Tax Credit and New Markets Tax Credit programs. HUD officials indicated that a larger role in the LIHTC program would be one way to aid their data collection efforts, better determine whether national affordable housing and fair housing goals had been incorporated, and better coordinate monitoring of civil rights compliance among federal housing programs.

IRS also has been challenged to focus on its core mission of helping taxpayers understand and meet their responsibilities and enforcing tax laws. IRS’s enforcement of tax laws has been on our high-risk list since 1990. In February 2015, we determined that significant capacity challenges—such as reduced staffing and examination coverage in an environment of constrained budgets—and incomplete monitoring of enforcement program performance have prevented the removal of the agency from the high-risk list. Moreover, since 2010, the IRS budget has been reduced about 10 percent and IRS enforcement performance and staffing levels have declined. And as we discussed previously in this report, LlHTC receives a small portion of those resources. IRS and Treasury officials further noted that oversight of individual state HFAs that award tax credits and monitor projects is a challenge given IRS’s mission of helping taxpayers meet their responsibilities and enforcing tax laws.

Joint Administration May Require Additional HUD Resources

Assigning LIHTC programmatic oversight responsibilities to another agency could involve additional staff and other resources. Specifically, such oversight responsibilities likely will involve new hiring as well as training of new and existing staff. According to HUD officials, HUD currently works with HFAs in various capacities, including administering HOME and other housing programs. However, an expanded oversight role in LIHTC would require additional resources. For example, resources would be needed to expand or build data systems to help HUD monitor HFAs and program performance. As noted earlier, HUD was statutorily required in 2008 to collect data on characteristics, such as race and income, of tenants living in LIHTC projects. HUD officials noted that collecting such data was challenging because HUD did not receive additional resources.

In our review of LIHTC and the other two tax credit programs, we found that each used different mechanisms to fund their administrative responsibilities. For instance, the Historic Rehabilitation Tax Credit uses fees to fund its administrative activities, such as issuance of regulations, the development of program information, and monitoring. In contrast, the New Markets Tax Credit does not rely on user fees but receives annual appropriations to fund its activities, such as application reviews, monitoring, and performance measurement.

For LIHTC, the HFAs partially fund their administration and oversight responsibilities—which include ongoing compliance inspections and other reviews—by assessing fees on owners of LIHTC projects. While practices can differ among the states, according to an annual survey by NCSHA, HFAs can assess a variety of fees to help offset their administrative costs, including application fees, reservation fees, carryover allocation fees, compliance monitoring fees, and penalties and fees related to late or amended submissions. The amounts of these fees vary from state to state; for example, LIHTC application fees range from $0 in Alaska to $6,500 in Georgia.

The level of resources that would be needed to perform an adequate level of oversight of HFAs is not known. According to HUD officials, estimating the level of resources needed to perform joint administration of the LIHTC program is feasible and could be based on HUD’s experience administering other housing programs. Having an estimate on potential costs and funding options for financing federal oversight of the LIHTC program will help HUD and congressional decision makers in assessing potential changes to the administration of the program.

Conclusions

Although LIHTC is the largest federal program for increasing the supply of affordable rental housing, LIHTC is a peripheral program in IRS in terms of resources and mission. Oversight responsibilities for the program include monitoring HFAs and taxpayer compliance. However, IRS oversight of HFAs has been minimal, particularly in reviewing QAPs and conducting audits of HFAs. Without regular monitoring of HFAs, IRS is not able to determine the extent to which HFAs comply with program requirements. Despite the importance of the program in the affordable rental housing market, program managers and congressional decision makers do not have sufficient information to assess the program’s effectiveness.

Significant resource constraints have affected IRS’s ability to oversee taxpayer compliance and currently preclude wide-ranging improvement to such functions, but IRS still has an opportunity to enhance oversight of taxpayer compliance in the LIHTC program. Reliable data on credit allocations and certifications would enable IRS to assess basic compliance requirements. IRS has acknowledged the need for improvements in its controls and procedures (including data entry and quality reviews). Federal internal control standards state effective information technology management is critical to achieving useful, reliable, and continuous recording and communication of information. IRS officials agreed that these problems should be corrected and data quality reviews be conducted on an ongoing basis.

Moreover, leveraging the experience and expertise of another agency with a housing mission, such as HUD, may help offset some of IRS’s limitations in relation to program oversight. Unlike the jointly administered Historic Rehabilitation and New Markets tax credit programs, IRS is the sole federal administrator in LIHTC and HUD has a limited role in the program. Expanding HUD’s role—making it a joint program administrator—could enhance LIHTC oversight. Although we and others have identified weakness in HUD’s evaluation and oversight of programs, HUD already has processes and procedures in place for evaluation and oversight of state and local agencies—they constitute a framework on which further changes and improvements in LIHTC could be effected. Under joint administration, IRS could continue to retain certain key responsibilities consistent with its tax administration mission. But assigning oversight responsibilities to HUD (such as reviewing QAPs, developing goals and performance measures, and collecting LIHTC data) could involve additional staff and other resources. The other tax credit programs we reviewed illustrate some of the different funding mechanisms such as fees that might be used to help fund new oversight for LIHTC. An estimate of potential costs and funding options for financing enhanced federal oversight of the LIHTC program would be integral to determining an appropriate funding mechanism.

Matter for Congressional Consideration

To better align program goals with agency missions and improve program administration and oversight, Congress should consider designating the Department of Housing and Urban Development as a joint administrator of the program responsible for oversight.

As part of the deliberation, Congress also should direct HUD to estimate the costs to monitor and perform the additional oversight responsibilities, including a discussion of funding options.

Recommendation for Executive Action

To improve the utility of the credit allocation information contained in IRS’s database, IRS should address weaknesses identified in data entry and programming controls to ensure reliable data are collected.

Agency and Third- Party Comments and Our Evaluation

We provided a draft of this report to HUD, Interior, IRS, and Treasury for their review and comment. IRS, Treasury, and HUD provided written comments that we reprinted in appendixes II to IV. IRS and Treasury also provided technical comments that were incorporated, as appropriate. Interior did not provide any comments on the draft report. We also provided a draft to the National Council of State Housing Agencies (NCSHA), a nonprofit organization that represents the HFAs, for its review and comment. NCSHA provided written comments that we reprinted in appendix V.

IRS agreed with our recommendation that it should address weaknesses in data entry and programming controls to ensure reliable data are collected. IRS noted that reliable data would enable it to more effectively assess basic compliance requirements. According to IRS’s comments, significant resource constraints have affected IRS’s ability to improve its database and implement other improvements in its procedures and controls. Additionally IRS noted that its review of hundreds of audits found no widespread compliance issues and therefore the agency performed no ongoing tracking of audit results and trends. However, as our report notes, IRS conducted this analysis in 2000 for a sample of 402 audits of LIHTC taxpayers performed from 1995 through 1999 and had not updated this review for nearly 15 years. Federal internal control standards state that monitoring should occur in the course of normal operations, be performed continually, and be ingrained in the agency’s operations. As a result, the agency does not have current knowledge of the level of noncompliance or if more monitoring were needed. IRS noted that it expects to take action in response to our recommendation to improve the utility of the credit allocation information contained in its database and improve monitoring. IRS did not comment on the matter for congressional consideration (to designate HUD as a joint administrator of the program responsible for oversight).

Treasury agreed that it would be useful for HUD to receive ongoing responsibility for, and resources to perform, research and analysis on the effectiveness of LIHTCs in increasing the availability of affordable rental housing. Treasury noted that such research and analysis is not part of IRS’s responsibilities or consistent with its expertise in interpreting and enforcing tax laws. However, Treasury stated that responsibility for interpreting and enforcing the code should remain entirely with IRS. Similarly, our report notes that under joint administration, IRS could retain certain key responsibilities consistent with its tax administration mission. In considering the utility of HUD’s expanded role in LIHTC, Treasury noted that research and analysis by HUD might help address whether HFAs’ allocations of LIHTCs affirmatively addressed fair housing concerns and whether the allocations have been effective in meeting other congressional goals. Treasury further observed that if HUD’s research and analysis indicated a need for additional interpretation or guidance, then Treasury and IRS could improve guidance or change the approach to enforcement. Coordinating on findings from any analyses conducted by HUD would be a positive step towards strengthening oversight of the program. As our report notes, IRS has performed minimal oversight of HFAs, particularly in terms of analyzing QAPs and conducting on-site or desk audits of HFAs. Thus, leveraging the experience and expertise of another agency with a housing mission may help offset some of IRS’s limitations in relation to program oversight. HUD could assume certain oversight responsibilities, such as reviewing QAPs of HFAs, monitoring of HFAs’ compliance with key responsibilities, identifying goals and performance measures, and collecting more programwide data.

HUD did not expressly comment on the matter for congressional consideration (to designate HUD as a joint administrator of the LIHTC program responsible for oversight). However, it supported consideration of a structure for enhanced interagency coordination on housing policy, including the LIHTC program. HUD noted that such a structure could help ensure the program’s alignment with federal housing goals, such as creating affordable housing in areas of high opportunity and fueling reinvestment in high-poverty communities. HUD has conducted dedicated research on LIHTC; for example, on the effect of incentives in state QAPs on the location of LIHTC properties. However, HUD noted that Congress would need to appropriate additional resources to any agency assigned the responsibility to provide oversight, review QAPs, and conduct further in-depth research on LIHTC. HUD stated that it did not receive any appropriations authorized for its collection of LIHTC tenant data, which delayed HUD’s ability to publicly release data. Our report also notes that assigning programmatic oversight responsibilities for LIHTC to another agency could require additional staff and other resources. We examined other tax credit programs with joint administration and found that each used varying mechanisms to fund its activities, including user fees and appropriations, which could serve as examples of how an agency may fund new oversight of LIHTCs.

NCSHA disagreed with our matter for congressional consideration. NCSHA stated that if Congress believed more oversight was needed, NCSHA would prefer to see Congress place those resources within Treasury and IRS to build on the program expertise in those agencies, partly because it asserted that HUD has “virtually no experience” with the LIHTC program. NCSHA noted that state HFAs have worked closely with Treasury and IRS to ensure proper administration of the program. Our report recognizes the various ways that IRS officials work with state HFAs to implement the program, but it also notes significant oversight deficiencies in IRS’s administration of the program. Our report also highlights several reasons why HUD may be an appropriate agency to jointly administer certain aspects of the LIHTC program. First, HUD is the federal government’s lead housing agency, and as such, has responsibilities for reporting on federal efforts to meet the nation’s affordable housing and fair housing goals. Second, HUD has experience working with HFAs on various programs, including its rental assistance programs, and through its risk-sharing agreements with HFAs. LIHTC projects also may be recipients of funds from other federal programs, including HUD-administered programs such as HOME and project-based Section 8 rental assistance. Third, HUD has a framework (processes, procedures, and staff) in place for program evaluation and oversight of state and local agencies that could be expanded and strengthened. Finally, HUD already has a data collection role in the LIHTC program. While this role is limited to mandatory data collection on tenant characteristics, such as race and income, and voluntarily maintaining data on LIHTC properties, a joint oversight role could allow HUD to directly collect nationwide data on LIHTC properties needed to assess program effectiveness. Whereas currently, statutory restrictions prevent the disclosure of taxpayer information collected by IRS to HUD. As a result, we maintain HUD, an agency with a housing mission and whose current programs regularly interact with the LIHTC program, is in a better position to perform some oversight functions for LIHTC. Also, in commenting on this report, Treasury recognized that it would be useful to have HUD receive ongoing responsibility for research and analysis on the effectiveness of LIHTCs.

NCSHA also questioned if it was fair of GAO to judge Treasury and IRS oversight by the amount of data collected or number of audits conducted and with seemingly little attention to the program’s successful housing results. In the report, we cite that monitoring should occur in the course of normal operations, be performed continually, and be ingrained in the agency’s operations. IRS does not regularly review QAPs or conduct on- site reviews of HFAs. More specifically, IRS had conducted only seven audits of HFAs since the program’s inception in 1986. IRS officials stated the lack in oversight was caused by a lack of resources and competing demands. Furthermore, we note that activities need to be established to monitor performance measures and indicators, which includes comparing data so that analyses can be conducted. However, we found that IRS has not set goals or assessed performance for the program, collected limited data needed to administer and enforce the tax code, and the data it collected are not reliable. The LIHTC program is the largest source of federal assistance for developing affordable rental housing and cost an estimated $8 billion in forgone revenue in 2014. Therefore, it is critical that program managers and congressional decision makers have reliable data available to judge the effectiveness and level of compliance of the program.

NCSHA also stated that joint administration of the LIHTC program would create additional red tape (a new level of bureaucracy) and could result in reduced program effectiveness and housing production. Our review focused on IRS’s oversight functions, including monitoring taxpayers and state HFAs and reviewing program data for program effectiveness and compliance. We did not suggest a comprehensive change to how IRS administers LIHTC. Rather, we recommend an approach to provide Congress and taxpayers with a greater understanding of how the program operates and performs. In our review of other tax credit programs (similar in purpose and structure to LIHTC) that were jointly administered by IRS and other federal agencies, we found the other federal agencies provided key oversight and administrative support, such as monitoring, performance measurement, and data collection. Under joint administration with HUD, IRS, with its tax expertise, could continue to retain certain key responsibilities in implementing the program in partnership with state HFAs. Joint administration of the program will involve dividing responsibilities for one program across two agencies, and our expectation would be that IRS and HUD will carefully define their respective roles and responsibilities and have clear lines of communication to help ensure the program does not create any unnecessary inefficiencies, such as duplicative or overlapping requirements for HFAs. In addition, Congress can define specific requirements and limits of each agency’s oversight responsibilities.

Finally, NCSHA noted that HFAs have a track record of outstanding performance in affordable housing finance and that Congress and the Administration entrusted HFAs to administer federal housing programs. In addition, NCSHA stated GAO had positively recognized HFAs for the LIHTC program in past reports. We acknowledged in our report that the LIHTC program was the largest federal program for increasing the supply of affordable rental housing and the design of the program can result in HFAs and other entities, including investors and syndicators, providing project oversight. We also made these points in prior work. But we also noted in prior work dating to 1997 that procedures for reviewing QAPs and monitoring compliance could be improved, and that LIHTC data were not sufficient to measure program success. Joint administration with an agency with a housing mission could help offset these longstanding deficiencies in IRS’s oversight of the program.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to the Secretaries of Housing and Urban Development, Interior, and Treasury; the Commissioner of Internal Revenue; the appropriate congressional committees; and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff members have any questions about this report, please contact me at (202) 512-8678 or garciadiazd@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix VI.

Appendix I: Objectives, Scope, and Methodology

This report discusses the Low-Income Housing Tax Credit (LIHTC) program, which is administered by the Internal Revenue Service (IRS) and state housing finance agencies (HFA). More specifically, this report (1) discusses how the LIHTC program is administered; (2) evaluates processes for overseeing the LIHTC program; and (3) compares the administration of other tax credit programs with LIHTC.

To determine how the LIHTC program is administered, we reviewed IRS regulations and guidance that describe IRS’s roles and responsibilities in administering the LIHTC program, including overseeing HFAs and taxpayers. We also reviewed documentation on the role of HFAs, investors, and syndicators in the program. Because LIHTC projects are often financed with funds from other programs, we reviewed the monitoring requirements for some federal programs present in LIHTC projects, such as the HOME Investment Partnerships (HOME) program and project-based Section 8. To illustrate the number of LIHTC projects containing other federal funding, we also reviewed a publication issued by the National Council of State Housing Agencies (NCSHA) on survey results. We assessed the reliability of these data by interviewing NCSHA officials and reviewing documentation on survey techniques used to collect the data. We determined the data were reliable for our purposes of reporting on other funding sources for LIHTC projects. We interviewed officials from IRS, the Department of the Treasury (Treasury), Department of Housing and Urban Development (HUD), selected HFAs, and NCSHA on the administration of the program. We also conducted interviews at the Georgia HFA and Illinois HFA to help provide examples of how the programs were administered at the state level. We selected these two HFAs based on prior work conducted at these locations for other GAO reports on the Tax Credit Assistance Program (TCAP), administered by HUD, and the Grants to States for Low-Income Housing Projects in Lieu of Low-Income Housing Credits (Section 1602) program, administered by Treasury. Our prior work is relevant because it assessed HFA administration and oversight of these programs and because we discuss TCAP and 1602 in this report. We also selected these sites because of their proximity to GAO locations. Moreover, we interviewed a certified public accounting and consulting firm, Novogradac & Company LLP. We selected this firm because of its role in the LIHTC working group—a forum for participants in the LIHTC program to work together to resolve technical and administrative issues relating to the LIHTC program—and because of the information on the firm’s website on HFAs and guidance for the LIHTC program.

To evaluate processes for overseeing the LIHTC program, we reviewed applicable forms and guidance used to monitor the program, and reviewed IRS audits of HFAs conducted from 2003 to 2014 to determine the frequency with which audits were conducted and the types of findings identified. We reviewed IRS’s process for identifying and conducting audits on taxpayers claiming LIHTCs from 2001 to 2013 and how the results of these audits were used to inform management about the types of noncompliance and to track the effectiveness of program monitoring. We reviewed federal internal control standards to identify key activities that help ensure that a program addresses requirements and appropriate actions are taken to address program risks. We also reviewed the strategic and annual reports of IRS, Treasury, and HUD to determine the program goals and outcome information available for the LIHTC program. We analyzed information contained in IRS’s Low-Income Housing Credit database from December 2005 to August 2014. Specifically, we reviewed available information from forms on the credit allocation and certification (form 8609) and the noncompliance or building disposition (form 8823). We assessed the reliability of the database by reviewing documentation, performing electronic testing, and interviewing the relevant officials responsible for administering and overseeing the database. We also conducted reasonableness checks on the data to identify any missing, erroneous, or outlying figures. We determined we would not be able to rely on the data to perform our analysis. Therefore, we limited our discussion of the database to the type of information collected, the extent to which the information was collected, and potential analysis that could be conducted if the data were more complete and accurate. We also reviewed an IRS staff proposal for statutory changes to allow IRS to disclose certain protected information so that HUD could help assess the completeness of the data it received on LIHTC tenant characteristics and reviewed a prior GAO report that discussed statutory exceptions related to data sharing of confidential taxpayer information. Lastly, we interviewed IRS and selected HFA officials about monitoring procedures for the LIHTC program and Treasury and HUD officials on program goals and outcomes and statutory barriers that may prevent information sharing for the LIHTC program.

To compare the administration of other tax credit programs with LIHTC, we reviewed tax credit programs administered by IRS to identify those that are most similar in purpose and structure to LIHTC. We focused on the Historic Rehabilitation Tax Credit and New Markets Tax Credit programs because, similar to the LIHTC program, both are aimed at encouraging community development and each is jointly administered by IRS and another federal entity—the Department of Interior’s National Park Service (NPS) and Treasury’s Community Development Financial Institutions (CDFI) Fund, respectively. In addition to administrative structures, our review focused on how these two programs conducted monitoring, used performance measures, and collected data. We reviewed prior GAO reports related to each of these programs. Moreover, we reviewed HUD’s role in working with state and local agencies and its role in the LIHTC program. We also reviewed information available in the State HFA Factbook: NCSHA 2012 Annual Survey Results to gain an understanding of how HFAs use fees to administer the LIHTC program. We assessed the reliability of these data by interviewing NCSHA officials and reviewing documentation on survey techniques used to collect the data. We determined the data were reliable for our purposes of reviewing how HFAs use fees to administer the LIHTC program. Additionally, we interviewed officials from the Departments of Interior and Treasury and the CDFI Fund concerning the administration of the Historic Rehabilitation Tax Credit and New Markets Tax Credit programs and how the programs funded administrative costs. We met with IRS officials to discuss their role in the administration of the Historic Rehabilitation Tax Credit.

We conducted this performance audit from February 2014 through July 2015 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comments from Internal Revenue Service

Appendix III: Comments from the Department of the Treasury

Appendix IV: Comments from the Department of Housing and Urban Development

Appendix V: Comments from the National Council of State Housing Agencies

Appendix VI: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the individual named above, Andy Finkel (Assistant Director), Nadine Garrick Raidbard (Analyst-in-Charge), Jessica Artis, Vaughn Baltzly, William R. Chatlos, Anar N. Jessani, Elizabeth Jimenez, John McGrail, Marc Molino, Ruben Montes de Oca, Christine Ramos, Barbara Roesmann, and MaryLynn Sergent made major contributions to this report.