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Federal fair housing law imposes on the Department of Treasury and state housing finance agencies (HFAs) an obligation to promote racial and ethnic desegregation. Both the Treasury and state HFAs are required “affirmatively to further” fair housing.
While the IRS is generally responsible for the LIHTC program, in 2000 it entered into a Memorandum of Understanding (MOU) with the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ) to enforce Fair Housing laws. HUD is generally charged with enforcing the Fair Housing Act, and may refer cases to the DOJ. The MOU explains that HUD and DOJ will provide technical assistance and training to the IRS and HFAs regarding fair housing laws.
Issues in LIHTC Fair Housing
Currently, the IRS and HUD do not view LIHTC properties as being federal financial assistance for the purposes of Section 504 and other civil rights laws. However, in the American Reinvestment and Recovery Act of 2009 (ARRA), Congress created two programs to address the current shortfall in usage of tax credits. American Recovery and Reinvestment Act of 2009, H.R. 1, 111th Cong. (1st Sess. 2009). First, Congress created a gap financing program using HOME funds, which fall under the scope of federal financial assistance. Second, it enacted a tax credit exchange program. In this program, an HFA is authorized to exchange 100% of unused 2007 and 2008 LIHTC and 40% of its2009 allocation to developers, and will receive 85 cents on the dollar. The exchange results in a direct up-front grant to the state housing finance agency from the Treasury Department to be used to make “subawards” to qualified low-income housing buildings whether or not they have otherwise received tax credits. Thus, these new programs subject LIHTC properties receiving such funds to Section 504 of the Rehabilitation Act of 1973. Click here for a Housing Law Bulletin article regarding the application of Section 504 to ARRA-funded LIHTC projects.
Proposed Data Collection
HUD released proposed data collection methodology, in accordance with the Housing and Economic and Recovery Act of 2008, regarding the collection of certain demographic and economic information on households residing in LIHTC properties. The IRS released proposed regulations guiding the collection of such information.
Litigation: Inclusive Communities Project v. Texas Dep’t. of Hous. and Cmty. Affairs, No. 3:08-CV-0546-D (N.D. Tex.)
In the context of other housing programs, several courts of appeal have held that the “affirmatively to further” duty prohibits an agency from funding housing developments that will exacerbate racial concentration. Similarly, Treasury and state HFAs should be obligated to reject tax credit applications that would worsen racial concentration. Under this presumption, the Inclusive Communities Project brought a lawsuit against the Texas Department of Housing and Community Affairs The ICP filed an initial complaint on March 28, 2008, alleging that TDHCA had violated the Fair Housing Act (FHA), the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. § 1982 by using race as a consideration in siting LIHTC properties and disproportionately allocating tax credits in areas primarily comprised of people of color while denying credits in predominantly white neighborhoods, thus making housing unavailable based on race, color and national origin. The case survived an initial motion to dismiss. Click here for an article on the court’s ruling.
State QAPs and Fair Housing
Some state HFAs have implemented methods by which to comply with fair housing laws. The primary mechanism by which state HFAs have worked on fair housing is through including certain requirements in their QAPS. For example, some HFAs prioritize tax credits in areas with high economic opportunity. The Poverty & Race Research Action Council and Lawyers’ Committee For Civil Rights Under Law have prepared a more extensive study on best practices regarding fair housing.