2023 New York Laws › PBG - Public Housing › Article 2-A - New York State Low Income Housing Tax Credit Program › 22 - Allowance of Credit, Amount and Limitations.

§  22.  Allowance  of  credit,  amount  and limitations. 1. A taxpayer
subject to tax under article nine-A, twenty-two, or thirty-three of  the
tax  law  which  owns  an  interest  in  one or more eligible low-income
buildings,  or  a  transferee  of  such  a  taxpayer  as  described   in
subdivision  eight  of  this  section, shall be allowed a credit against
such tax for the amount of low-income housing credit  allocated  by  the
commissioner  to  each  such building. Except as provided in subdivision
two of this section, the credit amount so allocated shall be allowed  as
a credit against the tax for the ten taxable years in the credit period.
2.  Adjustment  of  first-year  credit  allowed  in eleventh year. The
credit allowable for the first taxable year of the  credit  period  with
respect  to  any  building  shall be adjusted using the rules of section
42(f)(2) of the internal revenue code (relating to first-year adjustment
of qualified basis by  the  weighted  average  of  low-income  to  total
residential  units), and any reduction in first-year credit by reason of
such adjustment shall be allowable for the first taxable year  following
the credit period.
3.  Amount of credit. Except as provided in subdivisions four and five
of this section, the amount of low-income housing credit  shall  be  the
applicable percentage of the qualified basis of each eligible low-income
building.
* 4. Statewide limitation. The aggregate dollar amount of credit which
the  commissioner  may  allocate  to eligible low-income buildings under
this article shall be  one  hundred  fifty-seven  million  dollars.  The
limitation  provided  by  this subdivision applies only to allocation of
the aggregate dollar amount of credit by the commissioner, and does  not
apply  to  allowance  to  a  taxpayer  of  the credit with respect to an
eligible low-income building for each year of the credit period.
* NB Effective until April 1, 2025
* 4. Statewide limitation. The aggregate dollar amount of credit which
the commissioner may allocate to  eligible  low-income  buildings  under
this  article  shall  be  one  hundred  seventy-two million dollars. The
limitation provided by this subdivision applies only  to  allocation  of
the  aggregate dollar amount of credit by the commissioner, and does not
apply to allowance to a taxpayer  of  the  credit  with  respect  to  an
eligible low-income building for each year of the credit period.
* NB Effective April 1, 2025
5.  Building  limitation. The dollar amount of credit allocated to any
building shall not exceed the  amount  the  commissioner  determines  is
necessary for the financial feasibility of the project and the viability
of the building as an eligible low-income building throughout the credit
period.  In  allocating  a  dollar amount of credit to any building, the
commissioner shall specify the applicable  percentage  and  the  maximum
qualified  basis which may be taken into account under this article with
respect to such building. The  applicable  percentage  and  the  maximum
qualified  basis with respect to a building shall not exceed the amounts
determined  in  subdivisions  one  and  six,  respectively,  of  section
twenty-one of this article.
6.  Long-term  commitment  to  low-income  housing required. No credit
shall be allowed under this article with respect to a building  for  the
taxable  year  unless  an  extended  low-income housing commitment is in
effect as of the  end  of  such  taxable  year.  For  purposes  of  this
subdivision,  the term "extended low-income housing commitment" means an
agreement  between  the  taxpayer  and  the  commissioner  substantially
similar  to  the  agreement  specified  in  section  42(h)(6)(B)  of the
internal revenue code.
7. Credit to successor owner. If a credit is allowed under subdivision
one of this section with respect to an eligible low-income building  and

such building (or an interest therein) is sold during the credit period,
the credit for the period after the sale which would have been allowable
under  such subdivision one to the prior owner had the building not been
sold  shall  be  allowable to the new owner. Credit for the year of sale
shall be allocated between the parties on the basis  of  the  number  of
days during such year that the building or interest was held by each.
8.  (a)  A  taxpayer  allowed  a  credit  pursuant to this article may
transfer the credit, in whole or in part, to another person  or  entity,
who  shall  be  referred to as the transferee, without regard to how any
federal low-income housing tax credit with  respect  to  the  low-income
building  may be allocated and notwithstanding that such other person or
entity owns no interest in the eligible low-income  building  or  in  an
entity  with  an ownership interest in the eligible low-income building.
Transferees shall be entitled to  apply  transferred  credit  to  a  tax
imposed under article nine-A, twenty-two or thirty-three of the tax law,
provided  all requirements for claiming the credit are met. A transferee
may not transfer any credit, or portion thereof, acquired by transfer.
(b) A taxpayer allowed a credit pursuant to this  article  must  enter
into a transfer contract with the transferee. The transfer contract must
specify
(i)  the  building  identification  numbers  for  all buildings in the
project;
(ii) the date each building was placed into service;
(iii) the fifteen year compliance period for the project;
(iv) the schedule of years  for  which  the  transfer  credit  may  be
claimed and the amount of credit previously claimed;
(v)  the  amount  of  consideration  received  by the taxpayer for the
transfer credit; and
(vi) the amount of credit being transferred.
(c) No transfer shall be  effective  unless  the  taxpayer  allowed  a
credit pursuant to this article and seeking to transfer the credit files
a transfer statement with the commissioner prior to the transfer and the
commissioner  approves  such  transfer.  The  transfer  statement  shall
provide the name  and  federal  identification  numbers  of  the  filing
transferor  and  the  taxpayer to whom the filing transferor transferred
the credit, and the amount of credit transferred to each such person  or
entity.  A  copy  of  the  transfer  contract  shall  be attached to the
transfer  statement.  The  statement  shall  also  contain  such   other
information  as  the  commissioner  may  require.  After  reviewing  the
transfer contract and the transfer  statement,  the  commissioner  shall
approve  or  deny  the  transfer as provided in this subdivision. If the
commissioner approves the transfer,  the  commissioner  shall  issue  an
approval  statement  that  provides  the  name  of  the  transferor  and
transferee, the amount  of  credit  being  transferred  and  such  other
information  as  the  commissioner  and the commissioner of taxation and
finance deem necessary. A copy of the commissioner's approval  statement
must  be  attached  to  the transferee's tax return. If the commissioner
denies the transfer, the  commissioner  shall  provide  the  taxpayer  a
written determination for such denial. The commissioner, in consultation
with  the commissioner of taxation and finance, may establish such other
procedures and standards deemed necessary for the transferability of the
low-income housing credit.
(d) The commissioner shall forward copies of all  transfer  statements
and  attachments  thereto  and  approval statements to the department of
taxation and finance within thirty days after the transfer  is  approved
by the commissioner.