Nev. Rev. Stat. § 360.867 — Submittal of application on behalf of project; contents of application; reservation of credits; termination of reservation; issuance and transfer of credits; repayment of excess credits; confidentiality of information in application; regulations

NRS  360.867    Submittal of application on behalf of project; contents of
application; reservation of credits; termination of reservation; issuance and
transfer of credits; repayment of excess credits; confidentiality of
information in application; regulations.
1.  On behalf of a project, the project
sponsor may apply to the Division for a certificate of eligibility for
transferable tax credits which may be applied to:
(a) Any tax imposed by chapter 363A or 363B
of NRS;
(b) The gaming license fees imposed by the
provisions of NRS 463.370 ;
(c) Any tax imposed by chapter 680B of NRS; or
(d) Any combination of the fees and taxes
described in paragraphs (a), (b) and (c).
2.  To apply for a certificate of
eligibility for transferable tax credits, the project sponsor must:
(a) Submit an application on a form prescribed by
the Division; and
(b) Comply with the requirements to obtain an
allocation of federal low-income housing tax credits which are set forth in the
qualified allocation plan.
3.  The Division shall:
(a) Review each application for a certificate of
eligibility for transferable tax credits submitted pursuant to subsection 2 and
any supporting documents to determine whether the requirements for eligibility
for a reservation of transferable tax credits are met and the amount of
transferable tax credit threshold points awarded to the project;
(b) Determine the amount of transferable tax
credits for which the project may be eligible, which amount must equal the
amount determined by the Division to be necessary to make the project
financially feasible after considering all other sources of financing for the
project; and
(c) Reserve the amount of transferable tax
credits for which each project is determined to be eligible pursuant to
paragraph (b) in the order of the amount of transferable tax credit threshold
points awarded to each such project pursuant to paragraph (a) until a
reservation is made for each project or the amount of transferable credits
reserved for the fiscal year is equal to the amount of transferable tax credits
which the Division is authorized to approve for the fiscal year pursuant to NRS 360.868 , whichever occurs first. If the
amount of transferable tax credits reserved for the fiscal year reaches the
amount of transferable tax credits which the Division is authorized to approve
for the fiscal year pursuant to NRS 360.868
before each eligible project is reserved the full amount of transferable tax
credits for which it is determined to be eligible pursuant to paragraph (b),
the Division may take any action that the Division determines will ensure the
maximum development of affordable housing in this State, including, without
limitation, proportionally reducing the reservation of each project for which
transferable tax credits are reserved or reserving for the last project to
receive a reservation of transferable tax credits an amount of transferable tax
credits that is less than the full amount of transferable tax credits for which
the project was determined to be eligible pursuant to paragraph (b).
4.  If the Division reserves transferable
tax credits for a project pursuant to subsection 3, the Division shall provide
written notice of the reservation which identifies the amount of the tax
credits reserved for the project to:
(a) The project sponsor;
(b) The Department;
(c) The Nevada Gaming Control Board;
(d) The Office of Finance; and
(e) The Fiscal Analysis Division of the
Legislative Counsel Bureau.
5.  The Division:
(a) Shall terminate a reservation of transferable
tax credits if the project for which the reservation is awarded is not closed
within the period specified in paragraph (a) of subsection 6 unless, before the
expiration of that period, the Division receives from the project sponsor a
written request for an extension of not more than 45 days. The Division may
grant only one extension pursuant to this paragraph and, if the project is not
closed before the expiration of the extension period, the Division must
terminate the reservation of transferable tax credits. A request for an
extension submitted pursuant to this paragraph must be accompanied by proof
satisfactory to the Division that:
(1) The requirements for financing the
project have been substantially completed;
(2) The delay in closing was the result of
circumstances that could not have been anticipated by and were outside the
control of the project sponsor at the time the application was submitted by the
project sponsor; and
(3) The project will be closed not later
than 45 days after the Division receives the request.
(b) May terminate a reservation of transferable
tax credits if the Division determines that any event, circumstance or
condition occurs for which a reservation of federal low-income housing tax
credits may be terminated. If transferable tax credits are terminated pursuant
to this paragraph, the Division may issue a reservation for the amount of
transferable tax credits terminated to other projects eligible for transferable
tax credits in the order of the amount of transferable tax credit threshold
points awarded to each such project pursuant to paragraph (a) of subsection 3.
6.  Except as otherwise provided in this
section, to be issued transferable tax credits:
(a) Not later than 270 days after the Division
provides written notice of the reservation of transferable tax credits pursuant
to subsection 4, the project sponsor must demonstrate to the Division that the
project has been closed by providing proof satisfactory to the Division that
the project sponsor has:
(1) Purchased and holds title in fee
simple to, or has entered into a long-term ground lease for, the project site
in the name of the project sponsor.
(2) Entered into a written agreement with
a contractor who is licensed in this State to begin construction.
(3) Obtained adequate financing for the
construction of the project. The applicant must provide written commitments or
contracts from third parties.
(4) Executed a written commitment for a
loan for permanent financing for the construction of the project in an amount
that ensures the financial feasibility of the project. The commitment may be
subject to the condition that the construction is completed and the project is
appraised for an amount sufficient to justify the loan in accordance with the
requirements of the lender for credit. If the project is a rural development
project that receives loans or grants from the United States Department of
Agriculture, the applicant must provide a form approved by the Division that
indicates that money has been obligated for the construction of the project
before the expiration of the period. An advance of that money is not required
before the expiration of the period.
(b) Not less than 15 days before the project is
closed, the project sponsor must submit to the Division a final application for
transferable tax credits on a form provided by the Division and such other
information as the Division deems necessary to determine whether the project
qualifies for the issuance of transferable tax credits. Upon receipt of a final
application pursuant to this paragraph, the Division shall complete a review of
the project and the project sponsor. If, after such review, the Division
determines that the project complies with the requirements upon which
transferable tax credits were reserved pursuant to this section and a
declaration of restrictive covenants and conditions will be recorded in the
office of the county recorder for the county in which the project is located:
(1) The Division shall:
(I) Determine the appropriate amount
of transferable tax credits for the project, which must be the amount the
Division determines is necessary to make the project financially feasible after
all other sources of funding are allocated and paid toward the final cost of
the project and may not exceed the amount of transferable tax credits reserved
for the project pursuant to this section; and
(II) Notify the project sponsor that
the transferable tax credits will be issued;
(2) Within 30 days after the receipt of
the notice, the project sponsor shall make an irrevocable declaration of the
amount of transferable tax credits that will be applied to each fee or tax set
forth in subsection 1, thereby accounting for all of the credits which will be
issued; and
(3) Upon receipt of the declaration
described in subparagraph (2), the Division shall issue transferable tax
credits to the project sponsor in the amount approved by the Division. The
project sponsor may transfer the transferable tax credits to a member or
partner of the project sponsor or to any other entity. The project sponsor
shall notify the Division upon transferring any transferable tax credits. An
entity to which a project sponsor transfers any transferable tax credits may
transfer those transferable tax credits to one or more of its subsidiaries or
affiliates and shall notify the Division upon making any such transfer. The
Division shall notify the Department of Taxation, the Office of Finance, the
Fiscal Analysis Division of the Legislative Counsel Bureau and the Nevada
Gaming Control Board of all transferable tax credits issued, segregated by each
fee or tax set forth in subsection 1, and of all transferable tax credits
transferred, segregated by each fee or tax set forth in subsection 1.
7.  Upon completion of the project, the
project sponsor shall submit to the Division a certification of costs on a form
provided by the Division and such other information as the Division deems
necessary to determine the final cost of the project. If, based upon the final
cost of the project indicated in the certification of costs, the Division
determines that the amount of transferable tax credits issued by the Division
to the project sponsor is greater than the amount of transferable tax credits
to which the project sponsor is entitled:
(a) The Division shall notify the project
sponsor, the Department of Taxation, the Office of Finance, the Fiscal Analysis
Division of the Legislative Counsel Bureau and the Nevada Gaming Control Board
that the project sponsor is required to repay the portion of the transferable
tax credits to which the project sponsor is not entitled. The notice must
specify the amount of transferable tax credits that the project sponsor is
required to repay.
(b) The project sponsor shall repay to the
Department of Taxation or the Nevada Gaming Control Board, as applicable, the
portion of the transferable tax credits to which the project sponsor is not
entitled.
8.  The project sponsor may submit a
request to the Administrator of the Division to protect from disclosure any
information in the application which, under generally accepted business
practices, would be considered a trade secret or other confidential proprietary
information of the business. After consulting with the business, the
Administrator of the Division shall determine whether to protect the
information from disclosure. The decision of the Administrator of the Division
is final and is not subject to judicial review. If the Administrator of the
Division determines to protect the information from disclosure, the protected
information:
(a) Is confidential proprietary information of
the business;
(b) Is not a public record;
(c) Must be redacted by the Administrator of the
Division from any copy of the application that is disclosed to the public; and
(d) Must not be disclosed to any person who is
not an officer or employee of the Division unless the lead participant consents
to the disclosure.
9.  The Division may adopt any regulations
necessary to carry out the provisions of NRS
360.860 to 360.870 , inclusive.
10.  The Nevada Tax Commission and the
Nevada Gaming Commission:
(a) Shall adopt regulations prescribing the
manner in which transferable tax credits described in this section will be
administered.
(b) May adopt any other regulations that are
necessary to carry out the provisions of NRS
360.860 to 360.870 , inclusive.
11.  As used in this section:
(a) “Affiliate” means a person who, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with a specified person.
(b) “Certification of costs” means a report from
an independent certified public accountant attesting:
(1) To the amount of the actual costs of
construction of the project; and
(2) That those costs may be included in
the eligible basis of the project pursuant to the provisions of 26 U.S.C. § 42.
(c) “Subsidiary” means an entity in which a
person owns beneficially or of record 50 percent or more of the outstanding
equity interests.
(d) “Transferable tax credit threshold points”
means points awarded based on specific objectives determined by the Division
through the dissemination of a strategic plan for the development of affordable
housing created by the Division, the review of housing data and the receipt of
input from persons interested in the development of affordable housing.