§ 5-05 Application Procedure: Documentation.
RCNY § 5-05
(a)Application forms and filing. Prescribed forms and applications are available from the Department of Housing Preservation and Development, Office of Tax Incentive Programs, 100 Gold Street, 1st Floor, New York, New York 10038. All applications must be submitted to the Office on forms approved by the Office. Only applications complete in all detail will be considered for certification of eligibility and reasonable cost. All forms must be filled out fully and legibly by the applicant and shall be typewritten or inscribed in permanent ink. Applications and supporting documentation may only be submitted to the Office for review and approval after the completion of construction of work.
(b)Preliminary application. All applicants who intend to apply for tax exemption and tax abatement when they complete conversion, alteration or improvements must file a notice of intent form (form J-11) with the Department of Finance which describes the work for which tax benefits will be claimed, estimates the cost of the work for which tax benefits will be claimed and estimates the cost of the work which will be eligible for tax benefits. Such form must be filed not less than 45 days prior to the commencement of construction. If the scope of the work or the estimated cost changes materially, applicants must file a revised form with the Department of Finance. Applicants who fail to comply with the provisions of this subdivision (b) must pay a penalty at the time of issuance of a Certificate of Eligibility and Reasonable Cost of five hundred dollars ($500) plus an amount equal to one percent (1%) of the amount stated on the Certificate of Eligibility and Reasonable Cost in excess of ten thousand dollars ($10,000), provided that HPD may waive the penalty for projects receiving substantial governmental assistance. The penalty prescribed by this 28 RCNY § 5-05(b) is in addition to the normal filing fees prescribed in 28 RCNY § 5-05(f). Notwithstanding the foregoing, an applicant who performs an abatement of lead-based paint hazards shall not be required to file a notice of intent form (form J-11) with the Department of Finance prior to commencement of work, and no additional fee or penalty shall be due and owing HPD at the time of issuance of a certificate of eligibility and reasonable cost for failure to file such notice of intent.
(c)Documentation required of all applicants. All applicants must maintain documents relating to claimed costs as specified in 28 RCNY § 39-06(a), and all completed applications for final tax benefits must include the following documentation of the applicant's actual expenditures properly organized and collated in time sequence: (1) Original and four copies of the application form; and (2) one copy of the following: (i) a report by an independent certified public accountant on the cost of the Conversion, Alterations or Improvements, in a form prescribed by the Office and in accordance with standards approved by the Office and based upon the books and records of the owner provided that the original records are retained as set forth in 28 RCNY § 5-07(e)(3) and 28 RCNY § 39-06(a) and are available for audit purposes; or (ii) A Disposition of Funds Statement or certification by the Commissioner of the cost of the work based upon other program records where the Conversion, Alterations or Improvements are undertaken aided by a loan made pursuant to Article 8, 8-a, 11, 12, 15 or 22 of the Private Housing Finance Law or § 312 of the United States Housing Act of 1964 (42 U.S.C. § 1452b), or the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. §§ 12701 et seq.) or § 696-a or § 99(h) of the General Municipal Law, or any other City-supervised housing program, or, in the discretion of the Office, other governmentally-supervised housing program; or (iii) In the discretion of the Office, paid bills, cancelled checks, installment agreements, and the work contract and any change orders, indicating work, location of Building, and quantity in appropriate unit of measurement all in a form corresponding to the individual items on the Itemized Cost Breakdown Schedule so that the claimed costs can be audited by HPD against the specific items and allowances contained in such schedules; or (iv) In the case of applications for Buildings under 28 RCNY § 5-03(a)(9), a designated special application form may be submitted including the general contract (if applicable), trade payment breakdown schedule and an HPD inspection report or an HPD-approved construction monitor's certificate of completion. The Office, upon receipt of appropriate documentation, may determine that each such project has incurred eligible costs of at least twenty thousand dollars ($20,000) in CRC per unit and grant a Certificate of Eligibility and Reasonable Cost for one hundred and fifty percent (150%) of such amount, i.e., thirty thousand dollars ($30,000) in CRC per unit; and (3) Plans and amendments, if any, approved by the Department of Buildings; and (4) Proof of Commencement of Construction: (i) Copy of a Building Permit; or (ii) The Office shall require that the date of Commencement of Construction be confirmed by an affidavit of a registered architect or licensed professional engineer, together with, at the discretion of the Office, such other information as the Office may require to substantiate such date, including, but not limited to, an affidavit from the owner, a copy of the work contract, invoices, cancelled checks or such other proof of payment as the Office shall require, and a contractor's affidavit. If an application contains a series of Major Capital Improvements, the Commencement of Construction date is that of the first Major Capital Improvement for which benefits are claimed; and (5) Proof of Completion of Construction: (i) A Permanent Certificate of Occupancy; or (ii) A Temporary Certificate of Occupancy for all of the dwelling units therein, and an affidavit from a registered architect or licensed professional engineer and the owner that the only work remaining to secure a Permanent Certificate of Occupancy is work to be performed or completed in space to be used exclusively for non-residential purposes; or (iii) A sign-off by the Department of Buildings as evidenced by the J-3, a computer printout or such other official documentation as may be required by the Department of Buildings and is acceptable to the Office if issued in connection with an eligible Conversion, Alteration or Improvement; or (iv) If none of the above are required by law, Completion of Construction must be confirmed by the submission of an affidavit of a registered architect or a licensed professional engineer, along with such other information as may be required by the Office, including, but not limited to, an affidavit from the owner, a copy of the work contract, invoices, cancelled checks or such other proof of payment as the Office shall require, Disposition of Funds Statements, certification by the Commissioner based on program records or inspection, and a contractor's affidavit which confirm such Completion of Construction date to the satisfaction of the Office.
(6)Proof of Compliance with the Housing Maintenance Code. For applications for which a Certificate of Occupancy has not been issued within one year of the date of submission of such application for all units for which benefits are claimed: If a search by the Department of Housing Preservation and Development dated no earlier than ninety days prior to the date of submission of such application indicates that there are any violations of record which are classified as hazardous or immediately hazardous, the applicant must either clear the violations of record or submit affidavits: (i) from a registered architect, or a licensed professional engineer, certifying that the architect or engineer has inspected the premises and that work necessary to remove any hazardous or immediately hazardous violations has been completed. If a violation classified as hazardous or immediately hazardous was caused by a tenant and the tenant refuses to grant access to the applicant to correct the tenant-related violation, such violation will not preclude eligibility provided the applicant can establish these facts with clear and convincing evidence; and (ii) from the owner, certifying that the architect or engineer has inspected the premises and that work necessary to remove any hazardous or immediately hazardous violations has been completed. If a violation classified as hazardous or immediately hazardous was caused by a tenant and the tenant refuses to grant access to the applicant to correct the tenant-related violation, such violation will not preclude eligibility provided the applicant can establish these facts with clear and convincing evidence.
(7)Applications for benefits pursuant to 28 RCNY §§ 5-03(a)(2), (3) or (4) must provide proof of compliance with the relocation requirements of § 11-243(z) of the Act.
(8)Department of Buildings Certification for Tax Exemption and Tax Abatement (Form J-3) or, if no permits from the Department of Buildings are required, at the option of the Office, alternative documentation to prove absence of Building Code violations.
(9)Proof that the building has been registered with HPD in accordance with the provisions of article two of subchapter four of the Housing Maintenance Code.
(10)(i) For applications received on or after March 19, 2006, an affidavit from the owner certifying that whenever any household appliance in any dwelling unit, or any household appliance that provides heat or hot water for any dwelling unit in the multiple dwelling, is installed or replaced with a new household appliance on or after March 19, 2006, such new appliance shall be certified as Energy Star. If applicable, such affidavit may instead certify (A) that an appropriately-sized Energy Star certified household appliance is not manufactured, such that movement of walls or fixtures would be necessary to create sufficient space for such appliance, and/or (B) that an Energy Star certified boiler or furnace of sufficient capacity is not manufactured.
(ii)For purposes of this paragraph (10), (A) "household appliance" shall mean any refrigerator, room air conditioner, dishwasher or clothes washer, within a dwelling unit in the multiple dwelling that is provided by the owner, and any boiler or furnace that provides heat or hot water for any dwelling unit in the multiple dwelling, and (B) "Energy Star" shall mean a designation from the United States Environmental Protection Agency or Department of Energy indicating that a product meets the energy efficiency standards set forth by the agency for compliance with the Energy Star program.
(d)Additional documentation for buildings owned as cooperatives or as condominiums. Buildings owned as cooperatives or condominiums must submit the following additional documentation: (1) An opinion of counsel which states that the building is a legal cooperative or condominium and which has a prospectus accepted for filing by the Attorney General, or was formed prior to the date of prospectus was required by law, or is exempt for other reasons from the filing requirements; and (2) If benefits are claimed under 28 RCNY § 5-03(g)(2)(i), evidence of the first sale of a condominium unit or shares of stock allocable to a cooperative unit in a form required by the Office; and (3) A copy of the prospectus or offering plan which has been accepted for filing by the Attorney General, and all subsequent amendments which become effective prior to the time the Office issues a Certificate of Eligibility and Reasonable Cost for any cooperative or condominium eligible for tax abatement pursuant to 28 RCNY § 5-03(g).
(4)Provided, however, if benefits are being claimed under 28 RCNY § 5-03(g)(2)(iii) or (g)(2)(iv), evidence shall be submitted with respect to assessed valuation per unit and the average per room sale price during the three years preceding the application in a form prescribed by the Office.
(e)Additional documentation for certain alterations or improvements. Certain alterations and improvements require the approval of designated agencies and such additional documentation as the Office shall require. The "Schedule of Required Information, Permits and Sign-offs" set forth in 28 RCNY § 5-09 contains a list of the documentation that the Office requires for specific alterations and improvements.
(f)Filing Fees.
(1)Applicants must submit a non-refundable application fee with each application in the amount of five hundred ($500) dollars. Upon notification of a determination of reasonable cost in excess of ten thousand dollars ($10,000) and prior to issuance of the Certificate of Reasonable Cost, the applicant must pay an additional fee in an amount equal to one percent (1%) of the reasonable cost in excess of ten thousand dollars ($10,000). If applicable, the penalty prescribed by 28 RCNY § 5-05(b) must also be paid at this time.
(2)If a Code Violation Search report is not submitted with an application submitted on or before December 30, 2004 in accordance with 28 RCNY § 5-05(c)(6)(a), an additional non-refundable filing fee equal to the fee charged by the HPD Division of Code Enforcement, currently thirty dollars ($30), must be submitted to cover the cost of processing such search. This fee must be submitted simultaneously with the five hundred dollar ($500) application fee.
(3)Payment of all fees must be made by certified or cashier's check or a check from an attorney or owner/agent payable to the "NYC Department of Finance NYCJ51 Fee". In the event a check is returned unpaid, the applicant shall be assessed a fifty dollar ($50) processing fee and all further payments with respect to the application shall be made by certified or cashier's check.
(f-1)BLDS Inspections. Except as otherwise provided in Section 489 of the Real Property Tax Law, § 11-243 of the Administrative Code or these Rules, the filing of an application for a Certificate of Eligibility and Reasonable Cost is deemed a representation by such applicant that, with respect to all items of work claimed in such application, there has been Completion of Construction. Unless the aggregate cost of the items of work claimed in such application is less than ten thousand dollars ($10,000) or a designated special application form has been submitted in accordance with subparagraph (iv) of paragraph two of subdivision (c) of this section, all such items of work are subject to a BLDS Inspection prior to HPD's issuance of a Certificate of Eligibility and Reasonable Cost. Any Certificate of Eligibility and Reasonable Cost issued with respect to such application shall not include items of work claimed therein where, as determined by such BLDS Inspection, there has not been Completion of Construction.
(g)Issuance of a certificate of eligibility.
(iii)For buildings eligible for enriched abatement as provided in 28 RCNY § 5-06(c)(1) the total certified reasonable cost shall not exceed the lesser of the owner's total actual expenditure or one hundred fifty percent (150%) of the total of the Itemized Cost Breakdown Schedule amounts set forth in 28 RCNY § 5-08.
(iv)For buildings subject to the dollar limit set forth in 28 RCNY § 5-06(d), the aggregate certified reasonable cost may not exceed the maximum eligible CRC set forth therein.
(v)[Repealed.] (3) The Office shall issue a Certificate of Eligibility and Reasonable Cost for all approved applications. Failure to produce satisfactory supporting documentation of the cost of an alteration, improvement or conversion, or any part thereof, or any of the items specified in this chapter may result in the denial of a Certificate of Eligibility and Reasonable Cost.
(h)Filing procedure with the Department of Finance.
