DEPARTMENT OF STATE

Division of Historical and Cultural Affairs

FINAL

ORDER

901 Historic Preservation Tax Credit Program

In accordance with 29 Del.C. §10118 and 30 Del.C. Ch.18, Subch. II, §1815(b), for the reasons set forth herein, the Delaware Department of State, Division of Historical and Cultural Affairs enters this Order amending the Historic Preservation Tax Credit Program regulation.

NATURE OF THE PROCEEDINGS

Pursuant to its authority under 30 Del.C. Ch.18, Subch. II, §1815(b), the Division proposes to adopt an amended regulation for the Historic Preservation Tax Credit Program to specify under what circumstances a Credit Award would be withdrawn, establish a time frame during which rehabilitation work may qualify for a Credit Award, amend the fee schedule, and make other clarifications and technical corrections to the regulation. The amended regulation also reflects changes to the program made in the 149th General Assembly. The Historic Preservation Tax Credit Act (30 Del.C. Ch. 18, Subch. II) was amended to increase the maximum tax credit available for owner-occupied historic properties (81 Del. Laws. c. 390), and the Bond and Capital Improvements Act increased the total amount of credits available in each state fiscal year through state fiscal year 2024 (81 Del. Laws. c. 303).

The Division gave notice of its intent to amend the regulation in the August 1, 2018 issue of the Delaware Register of Regulations. At that same time, the Division submitted a Regulatory Flexibility Analysis and Impact Statement for this proposed revised regulation, as required by 29 Del.C. Ch. 104. The Division solicited written comments from the public for thirty (30) days as mandated by 29 Del.C. §10118(a).

SUMMARY OF EVIDENCE

In accordance with Delaware law, public notice regarding the proposed amendment of the regulation governing the Historic Preservation Tax Credit Program was published in the Delaware Register of Regulations. The public comment period was open from August 1, 2018 through September 4, 2018. Notice of the proposed amendment was also published in the News Journal on August 8, 2018 and the Delaware State News on August 5 and August 7, 2018, was posted on the Division's website, and was distributed to recipients of the Division's e-newsletter. The Division received written comments.

SUMMARY OF COMMENTS RECEIVED WITH AGENCY RESPONSE AND EXPLANATION OF CHANGES

The Division received written comments from five homeowners, three non-profit organizations, one municipality, and three developers including one large corporation and two individuals. The Division of Historical and Cultural Affairs has reviewed and considered each comment, summarized below, and responds as follows:

First, Fee Increases: The Division received several written comments requesting reconsideration of the new fee structure established in Section 8.0 of the regulation. Comments included: the proposed fee structure is not comparable with fees charged by other state programs or with the federal historic tax credit program (examples given); the fee would place an undue burden on non-profit organizations and applicants for resident-occupied properties; and the increase in costs would diminish the value of the credits and discourage application to the program.

Division Response: The Division amended subsection 8.1.1 of the regulation, reducing the application fee for resident-occupied properties and resident-curators from $250 to $100. The Division has reviewed and considered comments concerning the other aspects of the fee structure and determined to retain subsection 8.1.2 of the proposed regulation as posted. The fee schedule has not been adjusted since it was established in 2002.

Second, Fee Cap: The Division received written comments requesting imposition of a cap on the total fee charged, stating that the Division's proposed fee structure is not in alignment with the federal historic tax credit program which has a cap.

Division Response: The Division has reviewed and considered these comments and determined to retain subsection 8.1.2 of the proposed regulation as posted.

Third, "Grandfathering" Previously Approved Projects: The Division received written comments questioning the applicability of the new regulation to projects that have been previously initiated and/or are already underway. Commenters specifically requested that such projects be "grandfathered" and exempted from the new fee structure established in Section 8.0 and from the new subsection 5.5 limiting applications to only proposed work. A definition of the term "initiated" was suggested. Homeowners with completed projects that had planned to apply for a subsequent award (allowed under the previous program guidelines) also considered new subsection 5.5 detrimental and asked that it be removed from the regulation, modified to allow completed work within a reasonable period or if the work meets the Secretary of the Interior's Standards for Rehabilitation.

Division Response: The Division added a new subsection 4.6 to provide a definition of "initiated" projects, and a new subsection 4.7 citing circumstances when approval of a Part 1 application will expire. The Division then added a new Section 12.0 Transition Provisions that allows applicants to proceed under the previous regulation (18 DE Reg. 237) and guidance under specific circumstances. References to Section 12.0 were added to subsections 5.5 and 8.1, accordingly. However, the Division maintains that the limitations imposed by subsection 5.5 are necessary to ensure that the program is in keeping with its original intent, and notes that the program as a whole already requires that work meet the Secretary of the Interior's Standards.

Fourth, "Moratorium" on Applications: The Division received several written comments concerned that applicants were not made aware of the impending changes until after the proposed regulation was posted, at which time the Division was not accepting new applications, and under the new regulations their projects may no longer be eligible for the program.

Division Response: The Division added a new Section 12.0 Transition Provisions, which allows applicants to proceed under the previous regulation (18 DE Reg. 237) and guidance under specific circumstances, and cites the provisions of Section 10 that gives applicants the ability to appeal the Division's disapproval of an application.

Fifth, Conditional Approvals and Timeframes for Approval: The Division received written comments requesting clarification of when a Part 2 application is considered approved, pertaining to the interpretation of new subsection 5.5. It was noted that the regulation does not mention conditional approvals, though they occur. Related issues concerning the federal tax credit program were cited. It was suggested that a specific timeframe for approval or rejection of an application be included in the regulation.

Division Response: The Division added language to subsection 5.7 specifying that the Division may apply conditions to a Part 2 approval. The timeframe for review is currently in program guidance and the Division finds it is not necessary to add it to the regulation. The Division also finds it best to address in program guidance the unique issues that may arise when applicants are seeking both federal and state tax credits.

Sixth, Clarify Wording in subsections 5.5, 7.4 and 7.6: The Division received written comments suggesting specific language changes in these subsections.

Division Response: The Division amended subsection 5.5, changing "carried out" to "completed." The Division will use updated guidance to address provide further discussion of subsection 7.4, regarding circumstances when an increase in a credit award can be considered. The Division finds that new subsection 7.6 of the regulation, as written, reflects the allocation of credits to certain pools as specified by Delaware Code, 30 Del.C. Ch. 18, Subch. II, §1816, and allows sufficient flexibility for changes to the total credits allowed.

Seventh, Expedite Document Circulation for Final Approvals: The Division received written comments recommending the agency consider use of e-copies to obtain signatures from state government officials, including the Division of Historical and Cultural Affairs and Division of Revenue, and correspondence with applicants to expedite final approvals.

Division Response: The Division will explore this recommendation in the future.

FINDINGS OF FACT

The public was given the required notice of the Division's intention to amend the Historic Preservation Tax Credit Program regulation and was given opportunity to provide the Division with comments. The required Regulatory Flexibility Analysis and Impact Statement for this proposed revised regulation was submitted. Public comments were received. The Division has responded to the public comments in the Summary of Comments Received with Agency Response and Explanation of Changes. Thus, the Division finds that the proposed regulation, which adds subsections 4.6 and 4.7 and adds Section 12.0, should be adopted in the best interest of the general public of the State of Delaware. Additionally, some grammatical amendments and edits were made to the proposed regulations.

THEREFORE, IT IS SO ORDERED, this 1st day of November 2018 that the proposed Division of Historical and Cultural Affairs Amendment to the Historic Preservation Tax Credit Program Regulation 901 is adopted and shall become effective ten (10) days from the date of its publication in the November 2018 Delaware Register of Regulations, in accordance with 29 Del.C. §10118(e) and (g).

Jeffrey Bullock

Secretary of State

901 Historic Preservation Tax Credit Program

With permission of the property owner, a person or business entity who rehabilitates a certified historic property may apply for a credit against personal Delaware State income tax or bank franchise tax liabilities according to procedures and criteria established in these regulations and those that may be promulgated by the Division of Revenue or the State Bank Commissioner. A person eligible for tax credits under this Chapter, except a person engaged in a resident curator relationship, may transfer, sell or assign a portion or all unused credits.

These regulations are created pursuant to 30 Del.C. Ch. 18, Subch. II, which authorizes the Division of Historical and Cultural Affairs to promulgate regulations for implementation of the provisions of this subchapter (except tax‑related procedures) including, but not limited to, setting of fees and development of standards for the rehabilitation of eligible historic properties. The subchapter further authorizes the Division of Historical and Cultural Affairs to promulgate the application and forms governing participation in the certification program.

The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise:

“Act” means the [“Historic Preservation Tax Credit Act”, under] 30 Del.C. Ch. 18, Subch. II.

“Application” means the Delaware Historic Preservation Tax Credit application that shall consist of four parts, as follows: the Request for Certification of Historic Property (Part 1); the Request for Certification of Rehabilitation (Part 2); the Request for Certificate of Completion (Part 3), and the Request for Credit Award.

“Building” means created principally to shelter any form of human activity.

"Certification of Completion", or "Certificate of Completion" means the certificate issued by the Delaware State Historic Preservation Officer attesting that the certified rehabilitation, or, if applicable, a phase of the certified rehabilitation project, has been completed, and that the documentation of qualified expenditures and project plans that would be required in order to qualify for tax credits under Section 47 of the Internal Revenue Code (26 USC 47) (whether or not the project would be eligible for the federal tax credit) has been obtained.

“Certified historic property” means a property located within the State of Delaware that is:

“Certified rehabilitation” means rehabilitation of a certified historic property, or portion of the property, that has been certified by the Delaware State Historic Preservation Officer as a substantial rehabilitation, and is in conformance with the Secretary of the Interior’s Standards for Rehabilitation (36 CRF CFR 67) or other standards as the State Office shall from time to time adopt.

“Credit award” means the amount of qualified expenditures as determined by the State Office as part of the Part 2 approval multiplied by the appropriate percentage as determined in 30 Del.C. §1813.

“Delaware State Historic Preservation Officer” means the person designated and appointed in accordance with the National Historic Preservation Act of 1966, as amended (16 USC §470a(b)(1)(A) 54 USC §302301(1)). The Delaware State Historic Preservation Officer is an appointed position held by the Director, Division of Historical and Cultural Affairs.

“Downtown Development District” or “DDD” means an area within a municipality or unincorporated area designated by the governor as a Downtown Development District under 79 Del. Laws c. 240.

“Federal tax credit” means the Federal Rehabilitation Tax Credit as defined in the United States Tax Code, Title 26, Subtitle A, Chapter 1, Subchapter A, Part IV, Subpart E, Section 47 (26 USC 47).

“Fiscal Year” means the State of Delaware’s fiscal year.

“National Register of Historic Places” or “National Register” means the National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture that the United States Secretary of the Interior is authorized to expand and maintain pursuant to Section 101(a)(1) 302101 of the National Historic Preservation Act of 1966, as amended (16 USC §470(a)(1)(A) 54 USC §300101 et seq.).

"Office" or "State Office" means the Delaware State Historic Preservation Office, which is a part of the Division of Historical and Cultural Affairs.

"Owner-occupied historic property" means a certified historic property, or portion of the property, which is owned by the applicant and is being used, or within a reasonable period will be used, by an applicant as the applicant’s principal residence. The property may consist of part of a multiple dwelling or multiple purpose building or series of buildings, including a cooperative or condominium. If only a portion of a building is used as the principal residence, only those qualified expenditures that are properly allocable to that portion shall be eligible under this subchapter to apply for tax credits calculated at the percentage available to owner-occupants.

"Person" or “applicant” means an individual; any form of company or corporation which is lawful within the State of Delaware (including limited liability companies and S corporations) whether or not for profit; any form of partnership which is lawful within the State of Delaware (including limited liability partnerships) whether or not for profit; any trust or estate; and any lawful joint venture. "Person" or “applicant” shall also mean a non-state governmental entity; or a pass-through entity or person under a lease contract for five years or longer.

“Phased rehabilitation” means a certified rehabilitation of a certified historic property reasonably expected to be completed in two or more distinct stages of development as more fully described in Treasury Regulation 1-48-12(b)(v) or a successor provision.

"Property" means real estate and shall include any building which meets the definition in this section, including multiple-unit buildings.

“Qualified expenditure” means an amount properly expended by a person for the certified rehabilitation of a certified historic property, but shall not include:

“Reasonable period” means that an owner shall occupy the rehabilitated property as their principal residence within six months of the issuance of the Certificate of Completion. The State Office, in its sole discretion, may offer one extension, not to exceed three months, for cause.

“Resident Curator” means a person who has entered into a contractual agreement with the owner of a certified property in which the person agrees to pay for full restoration of the owner’s property in exchange for a life tenancy in the property without remunerative compensation to the owner for the life tenancy.

“Substantial rehabilitation” or “full restoration” means rehabilitation of a certified historic property for which the qualified expenditures, during the 24-month period, or the 60-month period for a phased rehabilitation, selected by the applicant exceeds:

“Taxpayer” means a person, as defined in this section, and shall include an individual or corporation taxable under Title 5, or taxable under either 30 Del.C. Ch. 11, or 30 Del.C. Ch. 19.

4.1 With permission of the property owner, an applicant may submit a Part 1 application to the State Office requesting that the State Historic Preservation Officer certify that a property in a National Register listed or locally designated historic district is a certified historic property as defined in Section 3.0 of this regulation. The applicant shall file the Part 1 application on standard forms developed by the State Office.

4.2 The State Office shall not process an incomplete Part 1 application until all required application information is received. Where adequate documentation is not provided, the State Office shall notify the applicant of the additional information needed to undertake or complete the review.

4.3 The Delaware State Historic Preservation Officer shall determine whether the property for which a complete Part 1 application is received meets the definition of certified historic property and shall notify the applicant of the decision.

4.4 If a property is individually listed in the National Register, submission of a Part 1 application is not required, whether or not an application for the federal tax credit is submitted.

4.5 The Delaware State Historic Preservation Officer may certify as historic a property for which an applicant has obtained a Part 1 certification from the federal government pursuant to 36 CFR 67. Under this provision, an applicant shall file only the cover page of the Delaware Part 1 application.

[4.6 Once the State Office has approved the Part 1 application, the project is considered initiated for the purpose of this program.

4.7 The Part 1 application shall expire if a Part 2 application is not received by the State Office within one calendar year from the date of issue of the approved Part 1.]

5.1 An applicant may submit a Part 2 application to the State Office requesting that the Delaware State Historic Preservation Officer determine if a proposed rehabilitation plan work meets the criteria as a certified rehabilitation as defined in Section 3.0 of this regulation. The applicant shall file the Part 2 application on standard forms developed by the State Office.

5.2 An applicant shall submit Part 1 of the application prior to, or with, Part 2. The State Office shall not process the Part 2 application until an adequately documented and approved Part 1 application, where required as outlined in Section 4.4 of these regulations, is on file.

5.3 The State Office shall not process an incomplete Part 2 application until all required application information is received. Where adequate documentation is not provided, the State Office shall notify the applicant of the additional information needed to undertake or complete a review.

5.4 Applicants may submit subsequent Part 2 applications for the same property as long as the following criteria are met:

5.5 The Part 2 application shall include any proposed rehabilitation work. Any rehabilitation work that has been [carried out completed] prior to the approval of the Part 2 application is not eligible for consideration[, except as provided for under Section 12.0].

5.6 An applicant requesting approval of a phased rehabilitation plan for a depreciable property shall provide the State Office with a description of the phases and their anticipated completion dates when submitting the Part 2 application. The Delaware State Historic Preservation Officer shall notify the applicant if the phased rehabilitation plan is approved. The final completion date for a phased rehabilitation is binding unless the applicant requests a change in writing. For a phased rehabilitation, the applicant is allowed up to 60 months to meet the substantial rehabilitation test.

5.67 The Delaware State Historic Preservation Officer shall determine whether the proposed rehabilitation for which a complete application is received under Section subsection 5.1 of this regulation meets the definition of a certified rehabilitation and shall send the applicant notice of the determination. The State Office may require modifications to the plan work as described in the Part 2 application in order to meet the definition of a certified rehabilitation. [The State Office may also apply conditions to a Part 2 approval so as to insure the work meets the definition of a certified rehabilitation.]

5.78 The Delaware State Historic Preservation Officer may issue a Part 2 approval to an applicant who has obtained a Part 2 certification from the federal government pursuant to 36 CFR 67. Under this provision, an applicant shall file only the cover page of the Delaware Part 2 application.

5.89 Applicants shall begin construction on the approved certified rehabilitation plan work as described in the approved Part 2 application within one year of receiving the Part 2 approval. If construction on the rehabilitation plan work as described in the Part 2 application is not substantially commenced and diligently pursued within this time period, the State Historic Preservation Officer may require that the applicant forfeit will withdraw any assigned credit award Credit Award. Any forfeited tax credits may become available for award to other applicants. Substantially commenced and diligently pursued shall mean means the applicant can demonstrate that a minimum, 25% of the estimated rehabilitation costs was expended within the first year after the tax credits are assigned. The State Office reserves the right to obtain documentation from the applicant supporting the expenditure.

5.10 If, at any time before a project receives its Certificate of Completion, the State Office requests documentation of on-going qualified expenditures for the previous year and the applicant does not produce such documentation, the Delaware State Historic Preservation Officer will withdraw any assigned Credit Reservation.

5.911 The Delaware State Historic Preservation Officer, or his/her designated representative, may inspect the historic property to determine if the work is consistent with the approved certified rehabilitation plan work as described in the Part 2 application, and if the project has substantially commenced and is being diligently pursued.

5.102 The applicant may request that the State Office review proposed changes to the project plan certified rehabilitation as described in the Part 2 application after the Part 2 application it is approved. The Delaware State Historic Preservation Officer shall determine whether the proposed change meets the definition of a certified rehabilitation and shall send the applicant notice of the determination.

6.1 Upon completion of the rehabilitation work outlined in the Part 2 application, or an approved project phase, the applicant shall submit to the State Office a Part 3 application with documentation supporting any conditions in the Part 2 application approval, the form(s) required in the Division of Revenue’s regulations indicating the name of the taxpayer who will claim the tax credit, and a final accounting of qualified expenditures. The State Office may prescribe the format in which the documentation of qualified expenditures is submitted. The costs are verified by and may be adjusted by the State Office if documentation is inadequate or costs are disallowed. Any submission of Part 3 of the application with qualified rehabilitation costs of more than $750,000 shall include a certified statement by a certified public accountant verifying that the expenses statement includes only qualified rehabilitation costs.

6.2 The State Office shall not process an incomplete Part 3 application until all required application information is received. Where adequate documentation is not provided, the State Office shall notify the applicant of the additional information needed to undertake or complete the review. The State Office may inspect the completed project to determine if the work meets the definition of a certified rehabilitation. The applicant will permit the State Office to inspect the completed project to determine if the work meets the definition of a certified rehabilitation.

6.3 Prior to approval of a Part 3 application, if the State Historic Preservation Officer (or the Keeper of the National Register of Historic Places) determines that an individual historic property or a historic district is no longer eligible for listing in the National Register due to a loss of integrity, any application for tax credits that has not yet been assigned by the Delaware Division of Revenue shall have its Credit Award withdrawn.

6.34 Upon approval by the State Office that the completed rehabilitation, or an approved phase, meets the definition of a certified rehabilitation, the State Office shall submit the documentation of qualified expenditures to the Division of Revenue and request a determination of the value of the tax credit for the completed project or an approved phase, meets the definition of a certified rehabilitation, the Delaware State Historic Preservation Officer shall issue a Certificate of Completion for the project, or approved phase. For approved phased rehabilitations, each phase must receive a Certificate of Completion in order for the overall project to be considered a certified rehabilitation.

6.45 After issuing a Certificate of Completion for a project, or an approved phase, receives its Certificate of Completion, the State Office shall submit the documentation outlined in 6.3 of these regulations of qualified expenditures and an 1811AC 0905 form to the Division of Revenue, and request a determination of the value of the tax credit documented expenditures and assignment of the calculated tax credits to the applicant in accordance with subsection 7.4 of these regulations for the completed project or an approved phase. For all projects in which the tax credits are to be applied against franchise taxes, and at other times as requested by the Division of Revenue, the forms and documentation will also be submitted to the State Bank Commissioner’s Office.

6.56 The Division of Revenue or the State Bank Commissioner’s Office will return the forms certifying the value of the tax credit for credits assigned to the project, or an approved phase, to the State Office which shall transmit the Certificate of Completion and the Revenue form(s) to the applicant, or taxpayer who will claim the tax credits.

6.67 In the case of approved phased projects, a single rehabilitation project may receive more than one Certificate of Completion. Credits issued to the initial assignee, or in the case of a tax-exempt assignee, to the first taxable transferee after the associated phase completion, are subject to revocation and repayment to the Delaware Division of Revenue or the Office of the State Bank Commissioner if, under regulations issued by the State Office, a phased rehabilitation is not completed by the agreed upon completion date indicating that the applicant for the credit award is unable or unwilling to complete it; or in the event that the project does not meet the certification requirements previously agreed to with the State Office.

7.1 An applicant shall request a credit award by filing a Request for Credit Award application with the State Office. The Request for Credit Award application may be submitted at the same time or subsequent to the submission of the Part 2 application, but no later than simultaneously shall be submitted with the Part 3 application.

7.2 If submitted with the Part 2 application, the applicant shall support the amount of qualified expenditures indicated on the Request for Credit Award by submitting a cost estimate prepared or certified by a licensed architect or engineer; an accountant; a contractor or a certified construction cost estimator. Where the rehabilitation work is complete, documentation of costs may be prepared or certified by a licensed architect or engineer; an accountant; a contractor or a certified construction cost estimator; or may be documented by paid invoices or cancelled checks for contractual work; and store invoices for material purchases. The State Office may prescribe the format in which the documentation of qualified expenditures is submitted. The cost estimate is verified by and may be adjusted by the State Office if documentation is inadequate or costs are disallowed.

7.32 The State Office will not process an incomplete Request for Credit Award application until all documentation as required in Section 7.2 of the regulations is received. Where adequate documentation is not provided, the State Office shall notify the applicant of the additional information needed to undertake or complete the review.

7.43 The State Historic Preservation Officer shall notify the applicant of the amount of their credit award. The credit award is calculated as a percentage of the qualified expenditures and will be rounded down to the nearest whole dollar. The criteria for applying the percentages to establish the credit award are:

The State Historic Preservation Officer shall notify the applicant of the amount of their credit award.

7.54 The Delaware State Historic Preservation Officer may consider an increase in a credit award where there has been an increase in qualified costs of greater than 5% of the total.

7.65 Despite having been assigned a certain credit award, an applicant may only claim the amount of tax credits which are supported by their actual rehabilitation costs. Excess tax credits made available in these circumstances are not eligible for subsequent award to other applicants.

7.76 Each fiscal year, $100,000 of the $5 million of the total that is allocated for Credit Awards is to be distributed as follows: assigned to make credit awards under these regulations is reserved for distribution to qualified resident curators. If in any fiscal year there are insufficient qualified resident curators to exhaust this allotment, the unused credit amount will be available in the next fiscal year for award to any eligible project.

7.6.1 $100,000 is reserved for distribution to qualified resident curators. If, in any fiscal year, there are insufficient qualified resident curators to exhaust this allotment, the unused credit amount will be available in the next fiscal year for award to any eligible project.

7.6.2 $1.5 million is reserved for projects receiving a credit award of not more than $300,000. After April 1, any unassigned portion of the $1.5 million is released to be available for credit awards to any eligible project.

7.6.3 $1.5 million is reserved for projects located in Downtown Development Districts, of which $500,000 is reserved for projects in DDDs receiving tax credits of not more than $300,000. After April 1, any unassigned portion of the $1.5 million is released to be available for credit awards to any eligible project.

7.8 Each fiscal year, $1.5 million of the $5 million assigned to make credit awards under these regulations is reserved for projects receiving a credit award of not more than $300,000. After April 1, any unassigned portion of the $1.5 million is released to be available for credit awards to any eligible project.

7.9 Each fiscal year, $1.5 million of the $5 million assigned to make credit awards under these regulations is reserved for projects located in Downtown Development Districts, of which $500,000 is reserved for projects in DDDs receiving tax credits of not more than $300,000. After April 1, any unassigned portion of the $1.5 million is released to be available for credit awards to any eligible project.

8.1 The fee for review of rehabilitation work for projects where the qualified expenditures are over $100,000 is $250 for each separate application. Final action will not be taken on an application until the appropriate remittance is received. No fee will be charged for rehabilitation projects where the qualified expenditures are less than $100,000. [All Except as provided for under Section 12.0, all] applicants who seek a Credit Award for their certified rehabilitation are subject to a fee.

8.1.1 The fee for applicants of owner-occupied properties and resident curators is [$250 $100]. The fee is due at the time the applicant submits their Request for Certification of Historic Property application. All fees are non-refundable.

8.1.2 The fee for all other applicants is as follows: $250 due at the time the applicant submits their Request for Certification of Historic Property Application; 1.5% of the credit reservation requested in the Part 2 Certification of Rehabilitation; and 1.5% of the credit reservation or credit award (whichever is more) in the Part 3 Certification of Completion. The fee will be calculated by the Delaware State Historic Preservation Office based on the qualified expenditures indicated in the Part 2 Certification of Rehabilitation and its associated documentation. If the applicant requests an increase the amount of tax credits to be awarded to a project, this will result in a supplemental fee. All fees are non-refundable.

8.1.3 The Delaware State Historic Preservation Officer may not pro-rate or waive the fee.

8.1.4 A Credit Award will not be made to an applicant until all applicable fees are paid.

8.1.4 Fees will be paid by check which are to be made payable to the State of Delaware. If the fee exceeds $10,000, a certified check is required.

8.1.5 This fee schedule is applicable to all projects initiated after the effective date of these rules[, except as provided for under Section 12.0].

8.2 The applicant shall submit the fee, where applicable, with the Part 3 application. For phased projects, the applicant shall submit the fee with the first Part 3 submitted. All checks shall be made payable to the State of Delaware. The revenue from fees charged for the Historic Preservation Tax Credit Program will be retained by the Division of Historical and Cultural Affairs for inspections and other expenses, which may include operational expenses and personnel costs.

9.1 Curatorship property is subject to periodic inspection by the State Office during the tax years in which the credit is applicable.

9.2 Improvements to curatorship property shall be completed within five years from the date of execution of the contract between the owner and the resident curator.

9.3 Curatorship property shall not be used for commercial purposes.

10.1 A taxpayer whose application is disapproved by the Delaware State Historic Preservation Officer under these regulations may file a written request for review with the Secretary of State or the Secretary’s designee within 60 days after the notice of disapproval is sent.

10.2 The Secretary of State or the Secretary’s designee shall review the request within 60 days after receipt of the request. If the Secretary of State or the Secretary’s designee determines that the application filed meets the standards set forth in these regulations the application shall be considered approved. If the Secretary of State or Secretary’s designee determines that the application filed does not meet the standards set forth in these regulations, the application shall be disapproved. The Secretary of State or Secretary’s designee shall promptly notify the taxpayer of the Secretary’s determination.

10.3 A taxpayer whose application is disapproved by the Secretary of State may appeal that action in accordance with the Administrative Procedures Act, 29 Del.C. §10101 et. seq.

10.4 An appellant who exhausts all administrative remedies is entitled to judicial review in accordance with 29 Del.C. Ch. 101, Subch. V of the Administrative Procedures Act.

11.1 Annually, on or before January 31st, the Delaware State Historic Preservation Officer shall issue an annual report on the restoration and rehabilitation status of all tax credit projects approved in the previous fiscal year.

11.2 The annual report shall include a list of all tax credit projects issued in previous years for which the tax credits have not been claimed.

11.3 The annual report will be distributed to the Governor and the General Assembly.

12.1 An applicant that has initiated, but not yet completed, a project prior to November 11, 2018 shall be subject to the regulation as adopted September 1, 2014 (18 DE Reg. 237), following existing guidance associated with that regulation.

12.2 Property owners that consulted with the State Office concerning a specific project prior to November 11, 2018 may request that the Division accept an application under the terms of the regulation as adopted September 1, 2014 (18 DE Reg. 237), following existing guidance associated with that regulation; the Division may consider such a request provided that:

12.2.1 The applicant demonstrates that the information in their previously approved Part 1 application remains valid, and submits the Part 2 application to the State Office by December 31, 2018.

12.2.2 If no Part 1 had been previously submitted, then the applicant submits both the Part 1 and Part 2 applications to the State Office by December 31, 2018.

12.2.3 The applicant may submit no more than one such request per property.

12.2.4 All other program requirements are met.

12.3 For owner-occupied properties with applications under subsections 12.1 and 12.2, the Credit Award may not exceed $30,000.

12.4 A taxpayer whose application is disapproved under subsection 12.2 may appeal in accordance with the administrative review process established in Section 10.0 of this regulation.]