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CFR Citation: 26 CFR Part 1

RIN ID: RIN 1545-BC40

TD ID: [TD 9150]

NOTICE: RULES

ACTION: Income taxes:

DOCUMENT ACTION: Final regulations.

SUBJECT CATEGORY: Remedial Actions Applicable To Tax-Exempt Bonds Issued by State and Local Governments

DATES: Effective Date: These regulations are effective August 13, 2004.

Applicability Date: For dates of applicability, see Sec. 1.141 16(c) and (d) of these regulations.

DOCUMENT SUMMARY: This document contains final regulations on the exempt facility bond rules applicable to taxexempt bonds issued by state and local governments. The regulations affect issuers of taxexempt bonds and amend provisions in the current regulations permitting remedial actions for taxexempt bonds issued by state and local governments.

SUMMARY: Tax-exempt bonds issued by State and local governments; remedial actions,

SUPPLEMENTAL INFORMATION

This document amends 26 CFR part 1 under sections 141 and 142 of the Internal Revenue Code by amending rules pertaining to remedial actions (the final regulations). On July 21, 2003, the IRS published in the Federal Register a notice of proposed rulemaking (REG13248303) (68 FR 43059) (the proposed regulations). The proposed regulations would amend (1) the definition of nonqualified bonds in Sec. 1.14112, (2) the rules in Sec. Sec. 1.14112 and 1.1422, pertaining to the allocation of nonqualified bonds, and (3) the effective date provisions under Sec. Sec. 1.14115(e) and 1.14116(c). A public hearing was scheduled for November 4, 2003. The public hearing was cancelled because no requests to speak were received. Written comments on the proposed regulations were received. After consideration of the written comments, the proposed regulations under Sec. Sec. 1.14116 and 1.142 2 are adopted as revised by this Treasury decision. The revisions are discussed below.
Explanation of Provisions

A. Proposed Regulations

The proposed regulations propose two changes to the remedial action rules contained in Sec. Sec. 1.14112 and 1.1422. First, the proposed regulations would change the definition of nonqualified bonds under Sec. 1.14112 to provide that the nonqualified bonds are a portion of the outstanding bonds in an amount that, if the remaining bonds were issued on the date on which the deliberate action occurs, the remaining bonds would not satisfy the private business use test or private loan financing test, as applicable. For this purpose, the proposed regulations provide that the amount of private business use is the greatest percentage of private business use in any oneyear period commencing with the deliberate action.

Second, the proposed regulations would amend the provisions of Sec. 1.14112 (relating to redemption or defeasance) and Sec. 1.1422 relating to allocations of nonqualified bonds.
[[Page 50066]]
Under the proposed regulations, allocations of nonqualified bonds must be made on a pro rata basis, except that an issuer may treat any bonds of an issue as the nonqualified bonds so long as (i) the remaining weighted average maturity of the issue, determined as of the date on which the nonqualified bonds are redeemed or defeased (determination date), and excluding from the determination the nonqualified bonds redeemed or defeased by the issuer, is not greater than (ii) the remaining weighted average maturity of the issue, determined as of the determination date, but without regard to the redemption or defeasance of any bonds (including the nonqualified bonds) occurring on the determination date.

The proposed regulations also would amend Sec. Sec. 1.14115(e) and 1.14116(c) to provide that for bonds issued before May 16, 1997, issuers may apply Sec. Sec. 1.14112 and 1.1422 without regard to the 10\1/2\ year limitation on defeasances contained in those regulations. B. Final Regulations

Public comments were received regarding the proposed regulations. These comments request that the amount of nonqualified bonds be determined in a manner consistent with the general measurement rules under Sec. 1.1413(g). Because of the interrelationship between the remedial action provisions of Sec. 1.14112 and the allocation and accounting rules of Sec. 1.1416 (which are currently reserved), the proposed regulations under Sec. Sec. 1.14112 and 1.14115 are not being finalized at this time. It is anticipated that these proposed regulations will be finalized in connection with the provision of the allocation and accounting rules.

Commentators agreed with the proposed change that allows any bonds of an issue to be treated as the nonqualified bonds, provided that the redemption or defeasance does not have the effect of extending the weighted average maturity (WAM) of the issue. However, the commentators stated that under the bond indentures for certain fixed rate bonds, the redemption or defeasance of bonds with the longest maturities in an issue could result in an extension of the WAM of the issue. Under some bond indentures, optional redemptions of a portion of a term bond must be used first to reduce the earliest mandatory sinking fund payments on the bond. In this case, the redemption or defeasance of the longest bonds could result in an extension of the WAM. Commentators indicated that requiring an issuer to use the pro rata allocation method in these circumstances is inappropriate and recommended that the regulations be revised to permit the longer bonds to be treated as the nonqualified bonds, which is permitted under the existing regulations. The IRS and Treasury Department agree that additional flexibility should be provided for outstanding bonds with bond indentures that prevent compliance with the WAM rule, but believe that extensions of the WAM should not be permitted on a prospective basis. As a result, the final regulations provide that for purposes of Sec. 1.1422(e)(2), in addition to the allocation methods permitted in Sec. 1.1422(e)(2), an issuer may treat bonds with the longest maturities (determined on a bondbybond basis) as the nonqualified bonds, but only with respect to failures to properly use proceeds that occur on or after May 14, 2004 with respect to bonds sold before August 13, 2004.

Other comments were received that are beyond the scope of this project. The IRS and Treasury Department continue to consider these comments.

Effective Dates

The final regulations apply to failures to properly use proceeds that occur on or after August 13, 2004 and may be applied by issuers to failures to properly use proceeds that occur on or after May 14, 2004, provided that the bonds are subject to Sec. 1.1422. The final regulations that amend Sec. 1.14116(c) apply to bonds issued before May 16, 1997, that are subject to Sec. 1.1422, for purposes of failures to properly use proceeds that occur on or after April 21, 2003.

Special Analyses

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the rule does not impose a collection of information on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply.

Drafting Information

The principal authors of these regulations are Rebecca L. Harrigal and Vicky Tsilas, Office of Associate Chief Counsel (Taxexempt and Government Entities), IRS. However, other personnel from the IRS and Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements. Adoption of Amendments to the Regulations
Accordingly, 26 CFR part 1 is amended as follows:
PART 1INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as follows:

Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.1410 is amended by adding an entry to the table for Sec. 1.14116(d) to read as follows:
Sec. 1.1410 Table of contents.
* * * * *
Sec. 1.14116 Effective dates for qualified private activity bond provisions.
* * * * *
(d) Certain remedial actions.
(1) General rule.
(2) Special rule for allocations of nonqualified bonds. Par. 3. Section 1.14116 is amended by revising paragraph (c) and adding paragraph (d) to read as follows:
Sec. 1.14116 Effective dates for qualified private activity bond provisions.
* * * * *
(c) Permissive application. The regulations designated in paragraph (a) of this section may be applied by issuers in whole, but not in part, to bonds outstanding on the effective date. For this purpose, issuers may apply Sec. 1.1422 without regard to paragraph (c)(3) thereof to failures to properly use proceeds that occur on or after April 21, 2003.
(d) Certain remedial actions(1) General rule. The provisions of Sec. 1.1422(e) apply to failures to properly use proceeds that occur on or after August 13, 2004 and may be applied by issuers to failures to properly use proceeds that occur on or after May 14, 2004, provided that the bonds are subject to Sec. 1.1422.
(2) Special rule for allocations of nonqualified bonds. For purposes of Sec. 1.1422(e)(2), in addition to the allocation methods permitted in Sec. 1.1422(e)(2), an issuer may treat bonds with the longest maturities (determined on a bondbybond basis) as the nonqualified bonds, but only with respect to failures to properly use proceeds that occur on or after May 14, 2004, with respect to bonds sold before August 13, 2004.
Par. 4. Section 1.1420 is amended by revising the entry to the table for Sec. 1.142
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2 and adding paragraphs (e)(1) and (2) to read as follows:
Sec. 1.1420 Table of contents.
* * * * *
Sec. 1.1422 Remedial actions.
* * * * *
(e) * * *
(1) Amount of nonqualified bonds.
(2) Allocation of nonqualified bonds.
* * * * *
Par. 5. Section 1.1422 is amended by revising paragraph (e) to read as follows:
Sec. 1.1422 Remedial actions.
* * * * *
(e) Nonqualified bonds(1) Amount of nonqualified bonds. For purposes of this section, the nonqualified bonds are a portion of the outstanding bonds in an amount that, if the remaining bonds were issued on the date on which the failure to properly use the proceeds occurs, at least 95 percent of the net proceeds of the remaining bonds would be used to provide an exempt facility. If no proceeds have been spent to provide an exempt facility, all of the outstanding bonds are nonqualified bonds.
(2) Allocation of nonqualified bonds. Allocations of nonqualified bonds must be made on a pro rata basis, except that an issuer may treat any bonds of an issue as the nonqualified bonds so long as
(i) The remaining weighted average maturity of the issue, determined as of the date on which the nonqualified bonds are redeemed or defeased (determination date), and excluding from the determination the nonqualified bonds redeemed or defeased by the issuer to meet the requirements of paragraph (c) of this section, is not greater than (ii) The remaining weighted average maturity of the issue, determined as of the determination date, but without regard to the redemption or defeasance of any bonds (including the nonqualified bonds) occurring on the determination date.
Nancy Jardini,
Acting Deputy Commissioner of Internal Revenue.

Approved: July 18, 2004.
Gregory Jenner,
Acting Assistant Secretary of the Treasury.
[FR Doc. 0418371 Filed 81204; 8:45 am]
BILLING CODE 483001P

FOR FURTHER INFORMATION CONTACT Vicky Tsilas, (202) 622-3980 (not a tollfree number).