Outline of Issues:
Generally, the issuer’s officer must, in good faith, certify the issuer’s expectations as of the issue date. The certification must state the facts and estimates that form the basis for the issuer’s expectations. The certification usually takes the form of a Tax Regulatory Agreement, a No-Arbitrage Certificate, a Tax Compliance Certificate or similar document or documents. Bond counsel do not have a standard method of documenting these expectations, and documents differ from firm to firm.
There are two exceptions in Treas. Reg. 1.148-2(b)(2)(ii), which states that an issuer is not required to make a certification for an issue if either:
- The issuer reasonably expects as of the issue date that there will be no unspent gross proceeds after the issue date, other than gross proceeds in a bona fide debt service fund (e.g., equipment lease financings in which the issuer purchases equipment in exchange for an installment payment note); or
- The issue price of the issue does not exceed $1,000,000.
Assume proceeds of an issue of certificates of participation finance projects for two different issuers (such as a “composite issue”). Assume further than the total issue price is $1,100,000, with the issue evenly split between the issuers. Each issuer may be eligible for the $1,000,000 exception to the certification requirement, in reliance on the multipurpose issue allocation provision in Treas. Reg. 1.148-9(h).
There used to be a rule in Treas. Reg. 1.103-13(a)(2)(iv) that forbade an issuer from certifying reasonable expectations if the issuer has been notified of a listing or proposed listing (“blacklisting”) by the Internal Revenue Service to the effect that the issuer is an issuer of obligations whose arbitrage certifications may not be relied upon. This rule is no longer in effect. See, e.g., reference to the provision in Harbor Bancorp v. Commissioner of Internal Revenue, 105 T.C. 260.
General Definition of Proceeds
Under Section 1.148-2(a) and 1.148-3(a) of the Regulations, “proceeds” for 148 purposes means “gross proceeds.” Section 1.148-1(b) defines “gross proceeds” to include proceeds and replacement proceeds of an issue.
Section 1.148-1(c)(1) of the Regulations defines “replacement proceeds” as amounts that have a sufficiently direct nexus to a tax-exempt bond issue or to the governmental purposes of a tax-exempt bond to conclude that the amounts would have been used for that governmental purpose.
Replacement proceeds include, as described in Section 1.148-1(c)(1), (a) sinking funds, (b) pledged funds and (c) other replacement proceeds described in Section 1.148-1(c)(4) to the extent that such funds or amounts are held by or derived from a substantial beneficiary of the issue. A substantial beneficiary of an issue includes the issuer, any related party to the issuer and the State in which the issuer is located (if the issuer is not a state). A person is not a substantial beneficiary simply by virtue that it is a guarantor under a qualified guarantee.
In PLR 8128057, the Internal Revenue Service claims that a seller that pledges security for the buyer’s bonds is a substantial beneficiary.
There is a December 6, 1994 letter ruling in the pension bond context relating to the definition of “substantial beneficiary.”
(a) Sinking Funds
Sinking funds, to the extent qualifying as bona fide debt service funds (i.e., used to pay debt service on the bonds and expended within 13 months of deposit) are eligible for the bona fide debt service fund exception stated in Treas. Reg. 1.148-2(e)(5)(ii). To the extent not qualifying for the bona fide debt service fund exception, such amounts are restricted to a temporary period of 30 days and thereafter may not bear a yield in excess of one one-thousandths of one percent, as further described in Treas. Reg. 1.148-2(e)(5)(i).
(b) Pledged Funds
See IRS Notice 2010-5 for a discussion of what constitutes “pledged funds.” Pledged funds are described in Section 1.148-1(c)(3).
See Priv. Ltr. Rul. 8334103 and Priv. Ltr. Rul. 8841027 concerning pledged funds/replacement funds with respect to a collateral account required to be held by a university, and a “building and equipment reserve fund” that could be used to pay debt service on the issue.
See Rev. Rul. 78-348 concerning when funds constitute pledged funds – and the nexus/relationship requirement. The issue therein concerns “Will certain securities pledged as collateral for municipal bonds be subject to arbitrage yield restrictions?” “An issuer that borrows to invest in higher-yielding securities and one that borrows against such securities already owned are in virtually the same economic position. […] There must be a reasonable assurance that the collateral will be available if needed to pay debt service, even if the issuer encounters financial difficulties. Thus, for example, an arrangement will not have the effect of a pledge of collateral if the issuer has discretion to defeat the ‘pledge’ merely by liquidating the ‘collateral’ and disposing of the proceeds.”
Negative Pledges as described in Section 1.148-1(c)(3)(ii) of the Regulations: An amount is treated as pledged to pay principal or interest on an issue if it is held under an agreement to maintain the amount at a particular level for the direct or indirect benefit of bondholders or a guarantor of the bonds. An amount is not treated as pledged under this paragraph, however, if (A) the issuer or a substantial beneficiary may grant rights in the amount that are superior to the rights of the bondholders or the guarantor; or (B) the amount does not exceed reasonable needs for which it is maintained, the required level is tested no more frequently than every 6 months and the amount may be spent without any substantial restriction other than the requirement to replenish the amount by the next testing date.
Frederic L. Ballard, Jr., in his book ABCs of Arbitrage (ed. 2007) (page 55), explains negative pledges as follows:
The regulations define a negative pledge for this purpose as a fund held under an agreement to maintain the amount at a particular level for the direct or indirect benefit of the bondholders or a guarantor of the bonds. In other words, a fund is covered by a negative pledge if the issuer has promised the bondholders that it will maintain the fund free of encumbrances – that is, that it will not pledge the fund to any other creditor. […] The “superior rights” rule has not been frequently relied upon in practice, since a fund as to which creditors may have superior security interests is generally not useful in transaction planning. The “six-month testing” rule appears to mean that the following would not create replacement proceeds:
1. An amount maintained for some reasonably purpose, typically designated as liquidity maintenance.
2. The borrower covenants that on the last day of each semiannual period, it would have the agreed-upon amount of unencumbered cash, including cash equivalents.
3. Between the semiannual testing dates the borrower would be unrestricted in its use of the cash. Its only obligation would be to have the required amount on hand at the next testing date.
4. A failure by the borrower to hold cash in the required amount on a testing date would be a default and could therefore trigger normal commercial remedies such as rights of cancellation.
A 2009 Bond Attorneys Workshop publication suggests that, to “meet the ‘reasonable needs’ requirement, some counsel attempt to tie the covenants to business requirements, as opposed to debt service requirements, e.g. ‘sufficient cash for 35 days operating needs,’ or to industry standards, such as rating agency requirements” (emphasis added). Covenants can, however, still be reasonable based on facts and circumstances even if based on debt service requirements.
As described in a recent April 2010 CBO report on arbitrage by colleges and universities, “if assets are not specifically pledged to pay the debt service on a tax-exempt bond or if the assets have no other direct connection to the bonds, the arbitrage restrictions do not apply.”
Pledged funds can also include a fund of the borrower pledged to the provider of a letter of credit [or a fund that the borrower must maintain from which debt service can be paid and that is tested more than twice a year].
A covenant does not necessarily need to relate to restriction on “investment” type property to constitute a negative pledge issue. However, if the assets restricted consist of only assets used in the trade or business (e.g., buildings, equipment) then the property is not reasonably within the scope of the negative pledge. Such property would not be “investment type” property (or property held principally as a passive vehicle for the production of income) under section 1.148-1(e) for purposes of 148(a) and (b).
Gifts can give rise to replacement proceeds concerns.
(c) Other Replacement Proceeds
Other replacement proceeds arise to the extent that an issue is outstanding longer than necessary, and the issuer expects there to be “available amounts.” The 1993 Regulations explain that an issue does not give rise to other replacement proceeds if (1) it is a working capital issue that is outstanding no longer than two years, (2) the bonds (including a refunding bond) meet the bond maturity limitation in Section 147(b) of the Code relating to economic life of assets financed (120% test), or (3) in the context of a refunding, the WAM of the refunding bonds is not longer than the WAM of the refunded bonds (and the refunded issue satisfied one of the above two tests).
Note the relationship between the “other replacement proceeds” definiton and the anti-abuse rules of Treas. Reg. 1.148-10(a)(4) of the 1993 Regulations. See Rev. Proc. 2002-31 for a discussion of “outstanding longer than necessary” in the context of tax and revenue anticipation notes.