American Recovery and Reinvestment Act of 2009:
The Stimulus Bill Regarding Municipal Bonds

           

Deduction by Financial Institutions of Interest Expense Allocable to Tax-Exempt Interest

 

In general, financial institutions may not deduct interest on indebtedness incurred to purchase or carry tax-exempt obligations.  The Code provides an exception to this rule for the interest expense of a "qualified tax-exempt obligation."  Prior to the Recovery Act, the definition of "qualified tax-exempt obligation" included tax-exempt bonds issued by "small issuers," i.e., issuers that issue within the calendar year no more than $10,000,000 in tax-exempt bonds (excluding private activity bonds, but including Qualified 501(c)(3) bonds). 

 

For bonds issued in 2009 and 2010, the Recovery Act liberalizes the rule as follows:

 

1.      The definition of "small issuer" includes issuers that issue within the calendar year no more than $30,000,000 in tax-exempt bonds.

 

2.      In determining the amount of bonds issued in a calendar year, the 501(c)(3) borrower is treated as the "issuer" of qualified 501(c)(3) bonds.  Qualified 501(c)(3) bonds issued by a state agency, finance authority or other large issuers may now qualify if the Section 501(c)(3) borrower has no more than $30,000,000 in bonds issued on its behalf in a calendar year.  Qualified 501(c)(3) bonds will also not count against a local government's $30 million limit.

3.      Current refundings of qualified tax-exempt obligations do not generally count against the $30,000,000 limit for an issuer.  Refundings of governmental or Section 501(c)(3) obligations that were not originally issued as qualified tax-exempt obligations may qualify under the new definition.

4.      The Recovery Act creates a temporary 2-percent safe harbor.   Under the Recovery Act, to the extent the average adjusted basis of tax-exempt obligations is 2-percent or less of the average adjusted basis of total assets, financial institutions would be permitted an exception from the deduction disallowance rule for interest on indebtedness related to tax-exempt obligations.  The 2-percent safe harbor would apply only to bonds issued in 2009 and 2010.  The safe harbor does not apply to refundings of pre-2009 bonds  Tax-exempt obligations issued under the amended "small issuer" rule are not counted in the 2-percent safe harbor.  Other private activity bonds and governmental bonds are counted against the 2-percent safe harbor.

 

Alternative Minimum Tax

 

The alternative minimum tax ("AMT") is a minimum tax imposed on individuals and corporations at certain income levels who, after applicable deductions and credits, have too little tax liability in relation to its AMT income.  AMT income is calculated by adjusting a taxpayer's taxable income for certain items that the Code considers "items of tax preference."  Prior to the Recovery Act, (1) interest on all tax-exempt private activity bonds (other than qualified 501(c)(3) bonds and certain housing bonds) was considered an item of tax preference and (2) a portion of the interest earned on tax-exempt obligations was includable in the alternative minimum taxable income of corporations.

 

Under the Recovery Act, for bonds issued between December 31, 2008 and January 1, 2011:

 

1.      The interest on tax-exempt private activity bonds is not an item of tax preference. 

 

2.      The interest on any tax-exempt bonds is not included in adjusted gross earnings in determining the alternative minimum taxable income of corporations. 

 

In addition, any tax-exempt private activity bonds issued between 2004-2008 may be refunded in 2009 or 2010 and such refunding bonds will not be a preference as described above. 

 

Manufacturing Bonds

 

Present law permits tax-exempt bond proceeds to be used to finance the construction of certain manufacturing facilities.  However, under present law only 25% of the proceeds of such bonds may finance facilities directly related and ancillary to the manufacturing facility.

 

For bonds issued after the date of enactment and before 2011, the Recovery Act provides a more relaxed qualification requirement, permitting facilities to be financed so long as the facilities are (i) “functionally related and subordinate” to a manufacturing facility and (ii) located at the same site are treated as part of the manufacturing facility.  The 25% limit on financing for “ancillary facilities” under the regular rules would no longer apply to those facilities.  In addition, the Recovery Act expands the authorization for $10,000,000 small issue manufacturing bonds to include facilities for manufacturing intangible property, including a patent, copyrights, formula, process, design, know-how, format, or similar item.

 

Build America Bonds

 

A new type of tax-credit bond called Build America Bonds would be created that pay bondholders a federal tax credit equal to 35 percent of taxable interest.  State and local governments may elect to issue Build America Bonds in lieu of tax-exempt governmental bonds (this provision does not apply to private activity bonds).

 

Bonds are eligible for this option with not more than a de minimis amount of premium.  The yield on these bonds will be determined without regard to the 35 percent tax credit.

 

Issuers of Build America Bonds may also elect to receive a rebate from the IRS of 35 percent of the interest paid on the bonds in lieu of the credit being provided to bondholders.  This refundable credit provision is only available for issues where 100 percent of the available project proceeds are used for capital expenditures, issuance costs and reasonably required reserve funds.

 

Build America Bonds must be issued prior to January 1, 2011.

 

Recovery Zone Economic Development Bonds

 

The Recovery Act creates a new category of tax credit bonds called Recovery Zone Economic Development Bonds, which are a type of Build America Bonds.  Recovery Zone Economic Development Bonds may be issued for purposes that promote development or other economic activity in a recovery zone (including capital expenditures with respect to property in a recovery zone, expenditures for public infrastructure, construction of public facilities and expenditures for job training and educational programs).  Recovery zones are defined as areas designated by state and local governments as having significant poverty, unemployment, home-foreclosure rates or general distress or any area for which a designation as an empowerment zone or renewal community is in effect.

 

The federal government will provide issuers of Recovery Zone Economic Development Bonds with an advance tax credit equal to 45 percent of the interest on the bonds.

 

Recovery Zone Economic Development Bonds will be subject to a national bond volume limitation of $10 billion.  The $10 billion volume limitation will be allocated to the states in proportion to their respective 2008 job losses, however, all states will receive no less than 0.9 percent of the allocation.  Suballocations to counties and large municipalities within a state will also made on the basis of relative job losses.

 

Recovery Zone Economic Development Bonds are subject to the current rules that apply to tax-exempt governmental bonds and must be issued prior to January 1, 2011.

 

Recovery Zone Facility Tax-Exempt Bonds For Privately Used or Owned Facilities

 

The Recovery Act creates a new category of tax-exempt private activity bonds called Recovery Zone Facility Bonds, which are created for use in areas designated as recovery zones.  Recovery zones are defined as areas designated by state and local governments as having significant poverty, unemployment, home-foreclosure rates or general distress or any area for which a designation as an empowerment zone or renewal community is in effect (same as for Recovery Zone Economic Development Bonds).

 

95% or more of the net proceeds of Recovery Zone Facility Bonds must finance recovery zone property,  defined as depreciable property meeting the following requirements:

 

1.      Facility is constructed, reconstructed, renovated, or acquired by a taxpayer by purchase after the date of designation of a recovery zone and the original use of the property in the recovery zone must commence with the taxpayer.

 

2.      Substantially all the use of the property must be in the recovery zone in a qualified business, defined to exclude:(i) rental of residential property and (ii) any private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises.

 

In addition, Recovery Zone Facility Bonds are exempt from the private activity bond rule against acquisition of existing property.

 

Recovery Zone Facility Bonds will be subject to a national bond volume limitation of $15 billion.  The $15-billion volume limitation will be allocated to the states in proportion to their respective 2008 job losses, however, all states will receive no less than 0.9 percent of the allocation.  Suballocations to counties and large municipalities (population over 100,000) within a state will also made on the basis of relative job losses.  This is the same allocation method used for Recovery Zone Economic Development Bonds.

 

Recovery Zone Facility Bonds must be issued before January 1, 2011.  Recovery Zone Facility Bonds will be subject to the current rules that apply to private activity bonds (except the rules relating to qualification, volume cap and not permitting the acquisition of existing property).

 

Qualified School Construction Tax Credit Bonds

 

The Recovery Act creates are a new form of tax credit bonds issued by a state or local government whose proceeds are used for construction, rehabilitation, or repair of public school facilities or acquisition of land for a public school to be constructed with its proceeds (“Qualified School Construction Bonds”).   The credit rate is required to be set by the Secretary of the Treasury at a rate that permits the issuance of these bonds at par.  The national limitation is $11,000,000,000 for 2009 and 2010, with 60 percent of that authority allocated to the states in proportion to the respective amount of local educational grants received by each state under the Elementary and Secondary Education Act, and the remaining 40% allocated to the largest local educational agencies in the nation.  The allocation to any State shall be reduced by the aggregate amount of the allocations to largest local educational agencies within such state.  The largest local educational agencies are (i) the 100 local agencies with the largest number of school-aged children below the poverty line and (ii) up to 25 local agencies in particular need of assistance as determined by the Secretary of Education. 

 

The Recovery Act also provides an additional $200 million of authority allocated to Indian tribal schools by the Secretary of the Interior.

 

Other Bond Provisions

 

Renewable Energy and Energy Conservation.  The Recovery Act increases the amount of bonds that may be issued to finance certain clean renewable energy facilities from $800 million to $2.4 billion and increases the amount of bonds that may be issued to finance energy conservation projects from $800 million to $3.2 billion. 

 

Increase in New Markets Tax Credit.  The New Markets Tax Credit provides a tax credit to investors in corporations with the primary mission of serving low income communities.  For the years 2008 and 2009, the Recovery Act increases the national limit for the new markets tax credit from 3.5 billion to 5 billion.  The amount of the increase in the new markets tax credit limitation for calendar year 2008 shall be allocated to development entities investing in low-income communities that submitted an allocation application with respect to calendar year 2008 and did not receive an allocation for such calendar year or received an allocation for such calendar year in an amount less than the amount requested in the allocation application.

 

Tribal economic development bonds.  The Recovery Act creates a tribal economic development bond program with a national limit of $2 billion.  Tribal governments may issue bonds under the program if such bonds would qualify for tax-exemption under Section 103 of the Code if issued by a State or political subdivision thereof, and if such bonds are designated as tribal economic development bonds by the tribal government.  The proceeds of such bonds may be used for any purpose that a State or political subdivision thereof may use its bond proceeds.

 

Modification to high speed intercity rail facility bonds.  The Code currently permits the issuance of "exempt facility bonds" for the purpose of financing high-speed intercity rail facilities, which are facilities made available to the public for rail transportation using vehicles reasonably expected to operate at speeds in of a maximum speed of 150 miles per hour.  The Recovery Act expands the definition of high speed intercity rail facilities to include vehicles reasonably expected to be capable of attaining a maximum speed in excess of a maximum speed of 150 miles per hour.

 

Extension and expansion of qualified zone academy bonds.  The Code authorizes the issuance of qualified zone academy bonds, which are tax-credit bonds issued for the benefit of certain public school programs and improvements.  The Recovery Act authorizes the issuance of $1.6 billion in qualified zone academy bonds in 2010 and increases 2009 limit from $400 million to $1.6 billion.

 

Coordination of low-income housing credit and low-income housing grants.  For 2009 only, the Recovery Act authorizes the Treasury to make a low-income housing grant to each state housing credit authority in an amount elected by such authority.  The maximum amount that an authority may elect corresponds to the ceilings placed on the allocation of low income tax credits to state authorities.  Under the Recovery Act, these ceilings shall be reduced by the grant amounts.

 

Mortgage Revenue Bonds.  Under the Recovery Act, home purchases financed by tax-exempt mortgage revenue bonds are no longer ineligible for the first time homebuyer tax credit.      In addition, the Recovery Act (i) extends the availability of the first time homebuyer tax credit to home purchases made through November 30, 2009, (ii) increases the credit from $7,500 to $8,000 and (iii) generally removes the requirement to repay the credit for homes purchased between January 1, 2009 and November 30, 2009.

 

If you have any questions, please James Snyder, partner in the Municipal Finance (Bonds) Practice Group.

 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.