234.07 Limited-profit entity; distributions.

(1) Except as provided in sub. (2), a limited-profit entity which receives loans from the authority may not make distributions, other than from funds contributed to the limited-profit entity by stockholders, partners, members or holders of beneficial interest in the limited-profit entity, in any one year with respect to a project financed by the authority in excess of 6 percent of its equity in such project on a cumulative basis. The equity in a project shall consist of the difference between the amount of the mortgage loan and the total project cost. Total project cost shall include construction or rehabilitation costs including job overhead and a builder's and sponsor's profit and risk fee, architectural, engineering, legal and accounting costs, organizational expenses, land value, interest and financing charges paid during construction, the cost of landscaping and off-site improvements, whether or not such costs have been paid in cash or in a form other than cash. With respect to every project the authority shall, pursuant to rules adopted by it, establish the entity's equity at the time of making of the final mortgage advance and, for purposes of this section, that figure shall remain constant during the life of the authority's loan with respect to such project. Upon the dissolution of the limited-profit entity any surplus in excess of the distributions allowed by this section shall be paid to the authority. For this purpose surplus shall not be deemed to include any increase in net worth of any limited-profit entity by reason of a reduction of mortgage indebtedness, by amortization or similar payments or by reason of the sale or disposition of any assets of a limited-profit entity to the extent such surplus can be attributed to any increase in market value of any real or tangible personal property accruing during the period the assets were owned and held by the limited-profit entity.

(2) If a limited-profit entity agrees to provide housing for low-income and moderate-income persons until the end of the maximum term of a mortgage that the limited-profit entity gives the authority, a limited-profit entity that receives a loan from the authority may not make distributions, other than from funds contributed to the limited-profit entity by stockholders, partners, members or holders of a beneficial interest in the limited-profit entity, in any one year with respect to a project financed by the authority in excess of 12 percent of its equity in the project on a cumulative basis.

History: 1971 c. 287; 1989 a. 346.

“Limited-profit entity" has meaning only with reference to WHEDA's loan to it. The entity terminates when the loan is satisfied and nothing remains to be done except to dispose of what remains in the hands of the entity, the surplus in excess of allowed distributions under sub. (1), which must be returned to WHEDA. WHEDA v. Bay Shore Apartments, 200 Wis. 2d 129, 546 N.W.2d 480 (Ct. App. 1996), 93-1825.

The determination of the mortgagor's equity under sub. (1) is set at closing and may not be changed subsequently if additional costs to the owner are discovered. The limitation of distributions beyond 6 percent of equity prevents distribution of interest on escrowed funds where the limit would be exceeded. Messner Manor Associates v. WHEDA, 204 Wis. 2d 492, 555 N.W.2d 156 (Ct. App. 1996), 95-2642.