26 CFR 1.42-19T – Average income test (temporary)
(a)-(b) [Reserved]
(c) Procedures—(1) Identification of low-income units for use in the average income set-aside test or the applicable fraction determination—(i) In general. For a taxable year, a taxpayer must follow the procedures described in paragraph (c)(1)(ii) of this section to identify—
(A) A qualified group of units that satisfy the average income set-aside test; and
(B) A qualified group of units used to determine the applicable fraction.
(ii) Recording and communicating. The procedures described in this paragraph (c)(1)(ii) are—
(A) Recording the identification in its books and records, where the identification must be retained for a period not shorter than the record retention requirement under § 1.42-5(b)(2); and
(B) Communicating the annual identifications to the applicable housing credit agency (Agency) as provided in paragraph (c)(2) of this section.
(2) Notifications to the Agency with jurisdiction over a project—(i) Agency flexibility. An Agency may establish the time and manner in which information is annually provided to it.
(ii) Example. An Agency may allow a taxpayer to describe a current year’s information by reporting differences from the previous year’s information or by reporting that there are no such differences. Various Agencies may choose to apply this manner of reporting to the identity of a qualified group of units for use in the average income set-aside or applicable fraction determination, or the imputed income limits designated for the various units in a project.
(3) Designation of imputed income limitations. (i)-(iii) [Reserved]
(iv) Recording, retention, and annual communications related to designations. A taxpayer designates a unit’s imputed income limitation by recording the limitation in its books and records, where it must be retained for a period not shorter than the record retention requirement under § 1.42-5(b)(2). The preceding sentence applies both to units whose first occupancy is as a low-income unit and to previously market-rate units that are converted to low-income status. The designation must also be communicated annually to the applicable Agency as provided in paragraph (c)(2) of this section.
(4) Waiver for failure to comply with procedural requirements. On a case-by-case basis, the Agency has the discretion to waive in writing any failure to comply with the requirements of paragraph (c)(1) or (2) or (c)(3)(iv) of this section up to 180 days after discovery of the failure, whether by taxpayer or Agency. If an Agency exercises this discretion, then the relevant requirements are treated as having been satisfied. In such a case, the tax consequences under this section correspond to that deemed satisfaction.
(d) Changing a unit’s designated imputed income limitation. (1) [Reserved]
(2) Process for changing a unit’s designated imputed income limitation. The taxpayer effects a change in a unit’s imputed income limitation by recording the limitation in its books and records, where it must be retained for a period not shorter than the record retention requirement under § 1.42-5(b)(2). The new designation must also be communicated to the applicable Agency as provided in paragraph (c)(2) of this section and must become part of the annual report to the Agency of income designations. The prior designation must be retained in the books and records for the period specified in paragraph (c)(3)(iv) of this section. A designation under this paragraph (d)(2) is considered to be made in a manner consistent with paragraph (c)(3) of this section.
(e) [Reserved]
(f) Applicability dates—(1) In general. Except as provided in paragraph (f)(3) of this section, this section applies to taxable years beginning after December 31, 2022.
(2) Designations of occupied units. (i) If a residential unit is occupied at the end of the most recent taxable year ending before the first taxable year to which this section applies and if the unit is to be taken into account as a low-income unit under this section as of the beginning of the first taxable year to which this section applies, then not later than the first day of such first taxable year, the taxpayer must designate an imputed income limitation for the unit. The first taxable year to which this section applies means the first taxable year beginning after December 31, 2022, if paragraph (f)(1) of this section applies, or the taxable year described in paragraph (f)(3) of this section if the taxpayer chooses to apply paragraph (f)(3) of this section.
(ii) The designation required by paragraph (f)(2)(i) of this section must comply with § 1.42-19(c)(3)(ii) and paragraph (c)(3)(iv) of this section, without taking into account paragraph (c)(4) of this section. Paragraph (c)(2) of this section applies to these designations, except that the Agency may allow the notification to be made along with any other notifications for the first taxable year beginning after December 31, 2022.
(iii) The designated imputed income limitation for the unit may not be less than the income that the current occupant of the unit had when that occupancy began.
(3) Applicability of this section to taxable years beginning before January 1, 2023. A taxpayer may choose to apply this section to a taxable year beginning after October 12, 2022, and before January 1, 2023, provided that the taxpayer chooses to apply § 1.42-15 to the same taxable year.
(4) Expiration date. The applicability of this section expires on October 7, 2025.