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Overview

Cox Castle is a nationally recognized leader in the affordable housing industry, focused on representing developers in all aspects of the acquisition, disposition, financing, development and operation of affordable housing projects, including major mixed-income, mixed-use and inclusionary developments.

We have served as lead counsel on hundreds of these projects, valued at many billions of dollars in more than thirty states. Our knowledge of market terms and deal structures, our close relationships with key industry players and our practical, problem-solving approach allow us to help our clients achieve their objectives in a cost-effective, streamlined fashion.

Utilizing our cross-disciplinary experience in real estate, tax, municipal finance, securities, construction, land use, governmental law, litigation and dispute resolution, we structure, negotiate and document such agreements as:

  • Joint ventures between developers (for-profit and nonprofit) and investors
  • Private activity bond transactions among issuing authorities, developers, lenders, credit enhancers and investors
  • Regulatory agreements between developers and governmental entities
  • Intercreditor arrangements among senior and subordinate lenders
  • Disposition and development agreements between developers and governmental entities

Deal Structuring

Successful low- and mixed-income projects often combine low-income housing tax credits under Internal Revenue Code Section 42, tax-exempt private activity bonds, other state and federal mortgage loan programs, property tax exemptions, density bonuses and other development incentives, ground lease structures, non-profit contributions and seller financing. Our clients rely on our extensive experience in engineering, developing, troubleshooting and implementing complex financial structures that combine some or all of these financing sources and incentives in a single transaction.

We offer insight on critical deal points that arise in low-, mixed-income deals, such as:

  • Layering federal, state and local grant and loan proceeds into a tax credit financed project
  • Structuring and implementing year-15 tax credit investor exits
  • Structuring year-15 tax credit resyndication transactions to avoid related party limitations under Internal Revenue Code Section 42
  • Accessing debt and equity sources on affordable restricted projects without triggering California's prevailing wage requirement
  • Managing exposure to liability under completion, repayment and performance guaranties

Tax Counseling

Our tax attorneys are experienced in all federal and state tax aspects of affordable housing development, with a special emphasis on taxation of partnerships and partners, nonprofit organizations, low-income housing tax credits, tax-exempt bond rules and transfer taxation of real estate. We understand the critical tax issues in low-income housing tax credit transactions, including:

  • The 10% test under Internal Revenue Code Section 42
  • Compliance with the minimum set-aside
  • Tax credit recapture during the compliance period
  • Deferred developer fees
  • Special allocations of partnership income and loss
  • Tax-exempt status
  • Property tax abatement

Market Knowledge

We maintain close and strong ties to key industry players, including state housing agencies, HUD, USDA Rural Development, tax credit investors and syndicators, for-profit and non-profit partners, bond issuers and bond counsel, Fannie Mae, Freddie Mac, conventional lenders, property managers and key municipalities. Our volume of transactions provides us with access to the most current financing terms and conditions, especially in California and the Western United States.

Government

Our attorneys routinely advise on the rules and regulations of state agencies responsible for housing development and finance matters (such as the California Tax Credit Allocation Committee, the California Debt Limitation Allocation Committee, the California Department of Housing and Community Development, the California Board of Equalization, the California Department of Industrial Relations and the California Department of Finance), federal agencies (such as the IRS, HUD and USDA Rural Development) and government-sponsored enterprises (such as Fannie Mae and Freddie Mac).

We have taken a leading role in organizing client responses and shaping public debate regarding proposed regulatory changes that affect affordable housing development. In addition, many administrative policies that affect the development of affordable housing projects are unwritten, and our extensive experience in numerous transactions provides clients with insights not generally available from other practitioners.

Partner Disputes and Litigation

Collaborating with our affordable housing transaction attorneys, our litigation and dispute resolution attorneys have unmatched experience assisting clients in a variety of affordable housing disputes, including year 15 tax credit investor disputes and other joint venture partner disputes in affordable housing projects.

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