Qualified Management Contracts (Rev. Proc. 2017-13)

General References

• Rev. Proc. 97-13, as modified and amplified by Notice 2014-67, thanks to the publicfinancetaxblog.
• Rev. Proc. 2016-44, as revised on September 2, 2016 with the extended transition period.  Modifies and supersedes Rev. Proc. 97-13 and Rev. Proc. 2001-39.

Certain Private Letter Rulings and Advice Memorandums

• FSA 199932017 (Aug. 13, 1999):  Whether a private corporation’s operation of a prison constructed with proceeds of bonds that are tax-exempt results in private business use; whether a private corporation’s guarantee of the payment of debt service on the bonds satisfies the private payment or security test; and whether an examining agent should rely on the Trust Indenture or the Official Statement when the two documents are inconsistent with respect to the property that secures payment of debt service on the bonds.  Not enough information to make a determination on any of these questions.
• PLR 200222006 (Feb. 19, 2002): Very helpful discussion regarding separation of agreements and compensation, and deferral of compensation and incentives:
  • Management contract between a hotel owner and a management contract, and separate preopening contract between the two, for (1) preopening services and (2) multiple operating services.  Provides for multiple fee structures: A fixed monthly fee for preopening, for 3 years; a fixed management fee with a deferral component; a one-time productivity reward that is subject to deferral; a centralized service fee with CPI adjustment; an inducement fee deemed repayment (treated as a reduction in fees paid by the owner); and expense reimbursement to third parties and not executive staff, for 15 years.
  • The IRS suggests that it may be appropriate to aggregate the terms of the two contracts so that the total term of the contracts is 18 years.  Nevertheless, assuming aggregation, the emphasis of the preopening contract is on supervision of the design and construction of the hotel prior to the date the hotel is placed in service – therefore the management phase of the contract occurs “primarily” during the 15-year term of the management contract.
  • The management fee (the fixed fee) is subject to adjustment based on percentage change in total RevPAR of the competitive set (excluding the hotel).  Beginning in the third year, the owner has the right to defer paying a stated dollar amount of the management fee if revenues of the hotel are not sufficient to pay certain senior expenses such as capital replacement reserves and a preferred return to the owner.  The deferred fee will accrue, however, and is payable in full if the contract is terminated or ends pursuant to its terms.
  • The IRS concludes that the non-deferrable portion of the management fee is a periodic fixed fee arrangement and the adjustment based on RevPAR is an acceptable external standard.
  • However, the IRS finds that the deferrable portion of the management fee could be viewed as a net profits-based payment.  The circumstances, however, suggest that the arrangement is acceptable – though outside of the safe harbor – because the full amount of the deferred fees will be payable regardless of the existence of net profits when the contract is terminated.  In addition, the amount of the deferred fees is a stated dollar amount and not itself a percentage of hotel net profits.  Finally, a feasibility study suggests that no deferrals will even occur with respect to the deferrable portion of the management fee and the incentive reward (which is also deferrable).
• PLR 200501003 (Jan. 1, 2005):  Service provider managing and serving output facility pool of generator equipment is providing services incidental to the governmental users’ use of the financed property.
• PLR 200651012 (Dec. 22, 2006):  Professional art college’s contract to manage student resident hall with corporation which provides management, administrative and operational services to the college won’t result in private business use of the dormitory.  The contract provides for a fixed fee over a 15-year term.  The fee is adjusted based on the CPI.  The contract also provides for reimbursements.  The contract has a renewal option for one-year periods.  The manager does not have any role or relationship with the university that substantially limits the university’s ability to exercise its rights, including cancellation rights, under the agreement.  The manager was created by the university.
• PLR 200926005 (Jun. 26, 2009):  Agreements with outside physicians relating to compensation based on “Net Professional Patient Billings” determined not to give rise to private business use based on all facts and circumstances.  Agreement exceeded the permissible term under Sec. 5.03(6) (2 years where, among other things, the services are provided primarily to third parties).
• PLR 201145005 (Aug. 4, 2011): Though it does not meet all the requirements of sec. 5 of Rev. Proc. 97-13, company’s management contract for authority’s bond-financed exhibition and convention facility will not cause a private business use of the facility under sec. 1.141-3(b)(4).  Though the agreement’s term is some two months longer than five years, the deviation is insignificant.  November 11 Tax Notes.
• PLR 201228029 (Mar. 30, 2012):  IRS determines, based all on facts and circumstances and not based on the safe habors in Rev. Rul. 97-13, that an agreement providing for (1) fixed direct fee (with adjustment based on credit support provided by service provider), (2) incentive compensation component, (3) reimbursement of pass-through expenditures (including partially marked-up costs from affiliates of the service provider) does not cause private use.  The arrangement does not, in any of these compensation parts, fall within the safe harbors, but the IRS, in its ability to make a facts and circumstances determination, holds that the agreement does not give rise to private use.
• PLR 201338031 (May 20, 2013):  Amending an agreement in a material manner causes the contract to be treated as a contract that is newly entered into as of the date of the material change.  A contract for the management of a hotel does not meet the requirements of section 5 of Rev. Proc. 97-13.  The contract provides for the payment of a base fee and an incentive fee.  The base fee is the greater of (1) an amount that would be a periodic fixed fee if it were paid every year or (2) a percent of the hotel’s actual gross receipts.  The incentive fee is a percentage of adjusted gross receipts if a certain RevPAR rate is achieved.  However, because the base fee and the incentive fee, both independently and in combination, are not based on a share of net profits, the IRS determined that the contract would not result in private business use of the hotel, based on all the facts and circumstances.
• PLR 201726007: Governmental hospital enters into arrangement with nonprofit school to permit school’s pharmacy students to participate in hospital’s training programs for nursing students. Ruling looks to Revenue Procedure 2017-13 to conclude that the arrangement does not give rise to private business use, even though arrangement does not meet all of the safe harbor conditions of the procedure. (Not sure which element is missing – perhaps the requirement that the exempt user control rates, etc.)
• PLR 202229002 (Jul. 25, 2022): Hotel management contract. The manager is paid a percentage of gross revenues. The manager is also reimbursed for employee costs. The employees are employees of the manager operating the hotel. The PLR states: “However, because the compensation to Service Provider includes the reimbursement of employee costs of Service Provider, the terms of the Agreement do not meet section 5.02(2) of Rev. Proc. 2017-13.” Section 5.02(2) states: “Compensation to the service provider will not be treated as providing a share of net profits if no element of the compensation takes into account, or is contingent upon, either the managed property’s net profits or both the managed property’s revenues and expenses (other than any reimbursements of direct and actual expenses paid by the service provider to unrelated third parties) for any fiscal period.”