[Code of Federal Regulations]
[Title 26, Volume 2]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.103-11]
[Page 389-391]
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY
(CONTINUED)
PART 1--INCOME TAXES--Table of Contents
Sec. 1.103-11 Bonds held by substantial users.
(a) In general. Section 103(c) (4), (5), or (6) (relating
respectively to interest on bonds to finance certain exempt facilities,
interest on bonds to finance industrial parks, and the exemption for
certain small issues of industrial development bonds) does not apply, as
provided in section 103(c)(7), with respect to any obligation for any
period during which such obligation is held either by a person who is a
substantial user of the facilities with respect to which the proceeds of
such obligation were used or by a related person (within the meaning of
section 103(c)(6)(C) and paragraph (e) of Sec. 1.103-10). Therefore, in
such a case, interest paid on such an obligation is includable in the
gross income of a substantial user (or related person) for any period
during which such obligation is held by such user (or related person).
(b) Substantial user. In general, a substantial user of a facility
includes any nonexempt person who regularly uses a part of such facility
in his trade or business. However, unless a facility, or
[[Page 390]]
a part thereof, is constructed, reconstructed, or acquired specifically
for a nonexempt person or persons, such a nonexempt person shall be
considered to be a substantial user of a facility only if (1) the gross
revenue derived by such user with respect to such facility is more than
5 percent of the total revenue derived by all users of such facility or
(2) the amount of area of the facility occupied by such user is more
than 5 percent of the entire usable area of the facility. Under certain
facts and circumstances, where a nonexempt person has a contractual or
preemptive right to the exclusive use of property or a portion of
property, such person may be a substantial user of such property. A
substantial user may also be a lessee or sublessee of all or any portion
of the facility. A licensee or similar person may also be a substantial
user where his use is regular and is not merely a casual, infrequent, or
sporadic use of the facility. Absent special circumstances, individuals
who are physically present on or in the facility as employees of a
substantial user shall not be deemed to be substantial users.
(c) Examples. The application of section 103(c)(7) and this section
are illustrated by the following examples:
Example (1). Pursuant to an arrangement with corporation X, County A
issues $4 million of its bonds (an exempt small issue under section
103(c)(6)(A) pursuant to an election under section 103(c)(6)(D) and
paragraph (b)(2) of Sec. 1.103-10) and will use the proceeds to finance
construction of a manufacturing facility which is to be leased to X for
an annual rental of $500,000. X subleases space to a restaurant operator
at an annual rental of $25,000 for the operation of a canteen and lunch
counter for the convenience of X's employees. The canteen is required to
be open at least 5 days each week (except holidays) from 8:30 a.m. to 5
p.m., and the lunch counter must be in operation during the noon hour.
The canteen regularly sells cigarettes, candy, and soft drinks, and uses
advertising displays and dispensers with product names. The space
physically occupied and the amount of revenue derived by the restaurant
operator are more than 5 percent of the respective amounts with respect
to the entire facility. Both X and the restaurant operator are
substantial users. However, absent special circumstances none of X's
employees, the employees of the restaurant operator, or the customers or
salesmen who regularly visit the premises to do business either with X
or the restaurant operator are substantial users. Similarly, the
manufacturers, distributors, and dealers of products sold in the canteen
ordinarily are not substantial users.
Example (2). The facts are the same as in example (1) except that X
rents food and beverage vending machines from a local dealer. The
machines are regularly serviced by the local dealer under a contract
with X. Title to and ownership of the machines are retained by the
dealer. The local dealer is not deemed to be a substantial user if the
revenue derived by such dealer from, and the space occupied by, such
machines do not exceed 5 percent of the respective amounts with respect
to the entire facility.
Example (3). City B proposes to issue $2 million of bonds which
qualify as an exempt small issue under section 103(c)(6)(A) pursuant to
an election under section 103(c)(6)(D) and paragraph (b)(2) of
Sec. 1.103-10 in order to construct a medical building for certain
physicians and dentists. The facility will contain 30 offices to be
leased on equal terms and for the same rental rates to each physician or
dentist for use in his trade or business. Each physician or dentist will
be a substantial user of the facility since the facility is being
constructed specifically for such physicians and dentists. The result
would be the same in the case of an office building for general
commercial use.
Example (4). City C proposes to expand the airport it owns and
operates with the proceeds of its bonds which qualify as bonds issued
for an exempt facility under section 103(c)(4)(D) and paragraph (e) of
Sec. 1.103-8 and which are secured by a pledge of airport revenues. The
airport is serviced by several commercial airlines which have long-term
agreements with C for the use of runways, terminal space, and hangar and
storage facilities. Each of the airlines either occupies more than 5
percent of the usable space of, or derives more than 5 percent of the
revenue derived with respect to, the airport. C also leases counter and
vehicle servicing and parking areas to car rental companies, space for
restaurants, kiosks for the sale of newspapers and magazines, and space
for the operations of a charter plane company. The latter operates its
own planes, offers flying lessons and services, and stores private
planes for local businesses and individuals. An airport limousine
company has an exclusive franchise for passenger pickup at the terminal.
Other taxi, transfer, freight, and express companies regularly deliver
passengers and freight to the terminal but do not have space regularly
assigned to them, nor do they have operating agreements with C. Various
business concerns have advertising product displays in the terminal
building. In addition to regular telephone service, coin-operated
telephones, provided by the telephone company, are located throughout
the terminal, at locations specified by C.
[[Page 391]]
None of the above exceed the 5-percent limitations of paragraph (b) of
this section and the bond proceeds will not be specifically used for any
of them. Only the commercial airlines, which violate the 5-percent
limitations, are substantial users of the airport.
Example (5). City D issues $25 million of its revenue bonds and will
use $10 million of the proceeds to finance construction of a sports
facility which qualifies as an exempt facility under section
103(c)(4)(B) and paragraph (c) of Sec. 1.103-8, $8 million to acquire
and develop land as the site for an industrial park within the meaning
of section 103(c)(5) and Sec. 1.103-9, and $7 million to finance the
construction of an office building to be used exclusively by the city,
an exempt person. The revenues from the sports facility and the
industrial park and all the facilities themselves will be the security
for the bonds. The sports facility and the industrial park sites will be
used in the trades of businesses of nonexempt persons. The bonds are
industrial development bonds, but under the provisions of paragraph
(a)(1) of Sec. 1.103-8 and paragraph (a) of Sec. 1.103-9, the interest
on the $25 million issue will not be includable in gross income.
However, the interest on bonds held shall be includable in the gross
income of a substantial user of either the sports facility or the
industrial park if such substantial user holds any of the obligations of
the $25 million issue. The 5-percent limitations of paragraph (b) of
this section are applied separately with respect to each facility.
Example (6). Authority E issues $4 million of bonds which qualify as
an exempt small issue under section 103(c)(6)(A) pursuant to an election
under section 103(c)(6)(D) and paragraph (b)(2) of Sec. 1.103-10 in
order to construct a bank building on the grounds of an airport. In
addition, E issues $40 million to expand the airport. The bank will not
derive revenue in excess of 5 percent of the revenue derived with
respect to the airport nor will it occupy more than 5 percent of the
usable area of such airport. The bank will be a substantial user of the
bank building constructed with the proceeds of the $4 million issue
since the facility was constructed specifically for the bank. However,
the bank will not be a substantial user with respect to the airport
because it does not exceed the 5-percent limitations of paragraph (b) of
this section. Had E issued one issue of $44 million in order to expand
the airport and construct a bank building, the bank would be a
substantial user of the entire facility since the $44 million issue was
being used to construct a facility a portion of which was specifically
for the bank.
[T.D. 7199, 37 FR 15499, Aug. 3, 1972; 37 FR 16177, Aug. 11, 1972]