[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: 26CFR1.148-9]
[Page 705-710]
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY
(CONTINUED)
PART 1--INCOME TAXES--Table of Contents
Sec. 1.148-9 Arbitrage rules for refunding issues.
(a) Scope of application. This section contains special arbitrage
rules for refunding issues. These rules apply for all purposes of
section 148 and govern allocations of proceeds, bonds, and investments
to determine transferred proceeds, temporary periods, reasonably
required reserve or replacement funds, minor portions, and separate
issue treatment of certain multipurpose issues.
(b) Transferred proceeds allocation rule--(1) In general. When
proceeds of the refunding issue discharge any of the outstanding
principal amount of the prior issue, proceeds of the prior issue become
transferred proceeds of the refunding issue and cease to be proceeds of
the prior issue. The amount of proceeds of the prior issue that becomes
transferred proceeds of the refunding issue is an amount equal to the
proceeds of the prior issue on the date of that discharge multiplied by
a fraction--
(i) The numerator of which is the principal amount of the prior
issue discharged with proceeds of the refunding issue on the date of
that discharge; and
(ii) The denominator of which is the total outstanding principal
amount of the prior issue on the date immediately before the date of
that discharge.
(2) Special definition of principal amount. For purposes of this
section, principal amount means, in reference to a plain par bond, its
stated principal amount, and in reference to any other bond, its present
value.
(3) Relation of transferred proceeds rule to universal cap rule--(i)
In general. Paragraphs (b)(1) and (c) of this section apply to allocate
transferred proceeds and corresponding investments to a refunding issue
on any date required by those paragraphs before the application of the
universal cap rule of Sec. 1.148-6(b)(2) to reallocate any of those
amounts. To the extent nonpurpose investments allocable to proceeds of a
refunding issue exceed the universal cap for the issue on the date that
amounts become transferred proceeds of the refunding issue, those
transferred proceeds and corresponding investments are reallocated back
to the issue from which they transferred on that same date to the extent
of the unused universal cap on that prior issue.
(ii) Example. The following example illustrates the application of
this paragraph of (b)(3):
Example. On January 1, 1995, $100,000 of nonpurpose investments
allocable to proceeds of issue A become transferred proceeds of issue B
under Sec. 1.148-9, but the unused portion of issue B' s universal cap
is $75,000 as of that date. On January 1, 1995, issue A has unused
universal cap in excess of $25,000. Thus, $25,000 of nonpurpose
investments representing the transferred proceeds are immediately
reallocated back to issue A on January 1, 1995, and are proceeds of
issue A. On the next transfer date under Sec. 1.148-9, the $25,000
receives no priority in determining transferred proceeds as of that date
but is treated the same as all other proceeds of issue A subject to
transfer.
(4) Limitation on multi-generational transfers. This paragraph
(b)(4) contains limitations on the manner in which proceeds of a first
generation issue that is refunded by a refunding issue (a second
generation issue) become transferred proceeds of a refunding issue (a
third generation issue) that refunds the second generation issue.
Proceeds of the first generation issue that become transferred proceeds
of the third generation issue are treated as having a yield equal to the
yield on the refunding escrow allocated to the second generation issue
(i.e., as determined under Sec. 1.148-5(b)(2)(iv)). The determination of
the transferred proceeds of the third generation issue does not affect
compliance with the requirements of section 148, including the
determination of the amount of arbitrage rebate with respect to or the
yield on the refunding escrow, of the second generation issue.
(c) Special allocation rules for refunding issues--(1) Allocations
of investments--(i) In general. Except as otherwise provided in this
paragraph (c), investments purchased with sale proceeds or investment
proceeds of a refunding issue must be allocated to
[[Page 706]]
those proceeds, and investments not purchased with those proceeds may
not be allocated to those proceeds (i.e., a specific tracing method).
(ii) Allocations to transferred proceeds. When proceeds of a prior
issue become transferred proceeds of a refunding issue, investments (and
the related payments and receipts) of proceeds of the prior issue that
are held in a refunding escrow for another issue are allocated to the
transferred proceeds under the ratable allocation method described in
paragraph (c)(1)(iii) of this section. Investments of proceeds of the
prior issue that are not held in a refunding escrow for another issue
are allocated to the transferred proceeds by application of the
allocation methods described in paragraph (c)(1) (iii) or (iv) of this
section, consistently applied to all investments on a transfer date.
(iii) Ratable allocation method. Under the ratable allocation
method, a ratable portion of each nonpurpose and purpose investment of
proceeds of the prior issue is allocated to transferred proceeds of the
refunding issue.
(iv) Representative allocation method--(A) In general. Under the
representative allocation method, representative portions of the
portfolio of nonpurpose investments and the portfolio of purpose
investments of proceeds of the prior issue are allocated to transferred
proceeds of the refunding issue. Unlike the ratable allocation method,
this representative allocation method permits an allocation of
particular whole investments. Whether a portion is representative is
based on all the facts and circumstances, including, without limitation,
whether the current yields, maturities, and current unrealized gains or
losses on the particular allocated investments are reasonably comparable
to those of the unallocated investments in the aggregate. In addition,
if a portion of nonpurpose investments is otherwise representative, it
is within the issuer's discretion to allocate the portion from whichever
source of funds it deems appropriate, such as a reserve fund or a
construction fund for a prior issue.
(B) Mark-to-market safe harbor for representative allocation method.
In addition to other representative allocations, a specific allocation
of a particular nonpurpose investment to transferred proceeds (e.g., of
lower yielding investments) is treated as satisfying the representative
allocation method if that investment is valued at fair market value on
the transfer date in determining the payments and receipts on that date,
but only if the portion of the nonpurpose investments that transfers is
based on the relative fair market value of all nonpurpose investments.
(2) Allocations of mixed escrows to expenditures for principal,
interest, and redemption prices on a prior issue--(i) In general. Except
for amounts required or permitted to be accounted for under paragraph
(c)(2)(ii) of this section, proceeds of a refunding issue and other
amounts that are not proceeds of a refunding issue that are deposited in
a refunding escrow (a mixed escrow) must be accounted for under this
paragraph (c)(2)(i). Those proceeds and other amounts must be allocated
to expenditures for principal, interest, or stated redemption prices on
the prior issue so that the expenditures of those proceeds do not occur
faster than ratably with expenditures of the other amounts in the mixed
escrow. During the period that the prior issue has unspent proceeds,
however, these allocations must be ratable (with reasonable adjustments
for rounding) both between sources for expenditures (i.e., proceeds and
other amounts) and between uses (i.e., principal, interest, and stated
redemption prices on the prior issue).
(ii) Exceptions--(A) Mandatory allocation of certain non-proceeds to
earliest expenditures. If amounts other than proceeds of the refunding
issue are deposited in a mixed escrow, but before the issue date of the
refunding issue those amounts had been held in a bona fide debt service
fund or a fund to carry out the governmental purpose of the prior issue
(e.g., a construction fund), those amounts must be allocated to the
earliest maturing investments in the mixed escrow.
(B) Permissive allocation of non-proceeds to earliest expenditures.
Excluding amounts covered by paragraph (c)(2)(ii)(A) of this section and
subject to any required earlier expenditure of those amounts, any
amounts in a mixed escrow that are not proceeds of
[[Page 707]]
a refunding issue may be allocated to the earliest maturing investments
in the mixed escrow, provided that those investments mature and the
proceeds thereof are expended before the date of any expenditure from
the mixed escrow to pay any principal of the prior issue.
(d) Temporary periods in refundings--(1) In general. Proceeds of a
refunding issue may be invested in higher yielding investments under
section 148(c) only during the temporary periods described in paragraph
(d)(2) of this section.
(2) Types of temporary periods in refundings. The available
temporary periods for proceeds of a refunding issue are as follows:
(i) General temporary period for refunding issues. Except as
otherwise provided in this paragraph (d)(2), the temporary period for
proceeds (other than transferred proceeds) of a refunding issue is the
period ending 30 days after the issue date of the refunding issue.
(ii) Temporary periods for current refunding issues--(A) In general.
Except as otherwise provided in paragraph (d)(2)(ii)(B) of this section,
the temporary period for proceeds (other than transferred proceeds) of a
current refunding issue is 90 days.
(B) Temporary period for short-term current refunding issues. The
temporary period for proceeds (other than transferred proceeds) of a
current refunding issue that has an original term to maturity of 270
days or less may not exceed 30 days. The aggregate temporary periods for
proceeds (other than transferred proceeds) of all current refunding
issues described in the preceding sentence that are part of the same
series of refundings is 90 days. An issue is part of a series of
refundings if it finances or refinances the same expenditures for a
particular governmental purpose as another issue.
(iii) Temporary periods for transferred proceeds--(A) In general.
Except as otherwise provided in paragraph (d)(2)(iii)(B) of this
section, each available temporary period for transferred proceeds of a
refunding issue begins on the date those amounts become transferred
proceeds of the refunding issue and ends on the date that, without
regard to the discharge of the prior issue, the available temporary
period for those proceeds would have ended had those proceeds remained
proceeds of the prior issue.
(B) Termination of initial temporary period for prior issue in an
advance refunding. The initial temporary period under Sec. 1.148-2(e)
(2) and (3) for the proceeds of a prior issue that is refunded by an
advance refunding issue (including transferred proceeds) terminates on
the issue date of the advance refunding issue.
(iv) Certain short-term gross proceeds. Except for proceeds of a
refunding issue held in a refunding escrow, proceeds otherwise
reasonably expected to be used to pay principal or interest on the prior
issue, replacement proceeds not held in a bona fide debt service fund,
and transferred proceeds, the temporary period for gross proceeds of a
refunding issue is the 13-month period beginning on the date of receipt.
(e) Reasonably required reserve or replacement funds in refundings.
In addition to the requirements of Sec. 1.148-2(f), beginning on the
issue date of a refunding issue, a reserve or replacement fund for a
refunding issue or a prior issue is a reasonably required reserve or
replacement fund under section 148(d) that may be invested in higher
yielding investments only if the aggregate amount invested in higher
yielding investments under this paragraph (e) for both the refunding
issue and the prior issue does not exceed the size limitations under
Sec. 1.148-2 (f)(2) and (f)(3), measured by reference to the refunding
issue only (regardless of whether proceeds of the prior issue have
become transferred proceeds of the refunding issue).
(f) Minor portions in refundings. Beginning on the issue date of the
refunding issue, gross proceeds not in excess of a minor portion of the
refunding issue qualify for investment in higher yielding investments
under section 148(e), and gross proceeds not in excess of a minor
portion of the prior issue qualify for investment in higher yielding
investments under either section 148(e) or section 149(d)(3)(A)(v),
whichever is applicable. Minor portion is defined in Sec. 1.148-2(g).
(g) Certain waivers permitted. On or before the issue date, an
issuer may waive the right to invest in higher
[[Page 708]]
yielding investments during any temporary period or as part of a
reasonably required reserve or replacement fund. At any time, an issuer
may waive the right to invest in higher yielding investments as part of
a minor portion.
(h) Multipurpose issue allocations--(1) Application of multipurpose
issue allocation rules. The portion of the bonds of a multipurpose issue
reasonably allocated to any separate purpose under this paragraph (h) is
treated as a separate issue for all purposes of section 148 except the
following--
(i) Arbitrage yield. Except to the extent that the proceeds of an
issue are allocable to two or more conduit loans that are tax-exempt
bonds, determining the yield on a multipurpose issue and the yield on
investments for purposes of the arbitrage yield restrictions of section
148 and the arbitrage rebate requirement of section 148(f);
(ii) Rebate amount. Except as provided in paragraph (h)(1)(i) of
this section, determining the rebate amount for a multipurpose issue,
including subsidiary matters with respect to that determination, such as
the computation date credit under Sec. 1.148-3(d)(1), the due date for
payments, and the $100,000 bona fide debt service fund exception under
section 148(f)(4)(A)(ii);
(iii) Minor portion. Determining the minor portion of an issue under
section 148(e);
(iv) Reasonably required reserve or replacement fund. Determining
the portion of an issue eligible for investment in higher yielding
investments as part of a reasonably required reserve or replacement fund
under section 148(d); and
(v) Effective date. Applying the provisions of Sec. 1.148-11(b)
(relating to elective retroactive application of Secs. 1.148-1 through
1.148-10 to certain issues).
(2) Rules on allocations of multipurpose issues--(i) In general.
This paragraph (h) applies to allocations of multipurpose issues,
including allocations involving the refunding purposes of the issue.
Except as otherwise provided in this paragraph (h), proceeds,
investments, and bonds of a multipurpose issue may be allocated among
the various separate purposes of the issue using any reasonable,
consistently applied allocation method. An allocation is not reasonable
if it achieves more favorable results under section 148 or 149(d) than
could be achieved with actual separate issues. An allocation under this
paragraph (h) may be made at any time, but once made may not be changed.
(ii) Allocations involving certain common costs. A ratable
allocation of common costs (as described in paragraph (h)(3)(ii) of this
section) among the separate purposes of the multipurpose issue is
generally reasonable. If another allocation method more accurately
reflects the extent to which any separate purpose of a multipurpose
issue enjoys the economic benefit or bears the economic burden of
certain common costs, that allocation method may be used.
(3) Separate purposes of a multipurpose issue--(i) In general.
Separate purposes of a multipurpose issue include refunding a separate
prior issue, financing a separate purpose investment, financing a
construction issue (as defined in Sec. 1.148-7(f)), and any clearly
discrete governmental purpose reasonably expected to be financed by that
issue. In general, all integrated or functionally related capital
projects that qualify for the same initial temporary period under
Sec. 1.148-2(e)(2) are treated as having a single governmental purpose.
The separate purposes of a refunding issue include the separate purposes
of the prior issue, if any. Separate purposes may be treated as a single
purpose if the proceeds used to finance those purposes are eligible for
the same initial temporary period under section 148(c). For example, the
use of proceeds of a multipurpose issue to finance separate qualified
mortgage loans may be treated as a single purpose.
(ii) Financing common costs. Common costs of a multipurpose issue
are not separate purposes. Common costs include issuance costs, accrued
interest, capitalized interest on the issue, a reserve or replacement
fund, qualified guarantee fees, and similar costs properly allocable to
the separate purposes of the issue.
(iii) Example. The following example illustrates the application of
this paragraph (h)(3).
Example. On January 1, 1994, Housing Authority of State A issues a
$10 million issue
[[Page 709]]
(the 1994 issue) at an interest rate of 10 percent to finance qualified
mortgage loans for owner-occupied residences under section 143. During
1994, A originates $5 million in qualified mortgage loans at an interest
rate of 10 percent. In 1995, the market interest rates for housing loans
falls to 8 percent and A is unable to originate further loans from the
1994 issue. On January 1, 1996, A issues a $5 million issue (the 1996
issue) at an interest rate of 8 percent to refund partially the 1994
issue. Under paragraph (h) of this section, A treats the portion of the
1994 issue used to originate $5 million in loans as a separate issue
comprised of that group of purpose investments. A allocates those
purpose investments representing those loans to that separate unrefunded
portion of the issue. In addition, A treats the unoriginated portion of
the 1994 issue as a separate issue and allocates the nonpurpose
investments representing the unoriginated proceeds of the 1994 issue to
the refunded portion of the issue. Thus, when proceeds of the 1996 issue
are used to pay principal on the refunded portion of the 1994 issue that
is treated as a separate issue under paragraph (h) of this section, only
the portion of the 1994 issue representing unoriginated loan funds
invested in nonpurpose investments transfer to become transferred
proceeds of the 1996 issue.
(4) Allocations of bonds of a multipurpose issue--(i) Reasonable
allocation of bonds to portions of issue. After reasonable adjustment of
the issue price of a multipurpose issue to account for common costs, the
portion of the bonds of a multipurpose issue allocated to a separate
purpose must have an issue price that bears the same ratio to the
aggregate issue price of the multipurpose issue as the portion of the
sale proceeds of the multipurpose issue used for that separate purpose
bears to the aggregate sale proceeds of the multipurpose issue. For a
refunding issue used to refund two or more prior issues, the portion of
the sales proceeds allocated to the refunding of a separate prior issue
is based on the present value of the refunded debt service on that prior
issue, using the yield on investments in the refunding escrow allocable
to the entire refunding issue as the discount rate.
(ii) Safe harbor for pro rata allocation method for bonds. The use
of the relative amount of sales proceeds used for each separate purpose
to ratably allocate each bond or a ratable number of substantially
identical whole bonds is a reasonable method for allocating bonds of a
multipurpose issue.
(iii) Safe harbor for allocations of bonds used to finance separate
purpose investments. An allocation of a portion of the bonds of a
multipurpose issue to a particular purpose investment is generally
reasonable if that purpose investment has principal and interest
payments that reasonably coincide in time and amount to principal and
interest payments on the bonds allocated to that purpose investment.
(iv) Rounding of bond allocations to next whole bond denomination
permitted. An allocation that rounds each resulting fractional bond up
or down to the next integral multiple of a permitted denomination of
bonds of that issue not in excess of $100,000 does not prevent the
allocation from satisfying this paragraph (h)(4).
(v) Restrictions on allocations of bonds to refunding purposes. For
each portion of a multipurpose issue that is used to refund a separate
prior issue, a method of allocating bonds of that issue is reasonable
under this paragraph (h) only if, in addition to the requirements of
paragraphs (h)(1) and (h)(2) of this section, the portion of the bonds
allocated to the refunding of that prior issue--
(A) Results from a pro rata allocation under paragraph (h)(4)(ii) of
this section;
(B) Reflects aggregate principal and interest payable in each bond
year that is less than, equal to, or proportionate to, the aggregate
principal and interest payable on the prior issue in each bond year;
(C) Results from an allocation of all the bonds of the entire
multipurpose issue in proportion to the remaining weighted average
economic life of the capital projects financed or refinanced by the
issue, determined in the same manner as under section 147(b); or
(D) Results from another reasonable allocation method, but only to
the extent that the application of the allocation methods provided in
this paragraph (h)(4)(v) is not permitted under state law restrictions
applicable to the bonds, reasonable terms of bonds issued before, or
subject to a master indenture that became effective prior to, July 1,
1993, or other similar restrictions or circumstances. This paragraph
[[Page 710]]
(h)(4)(v)(D) shall be strictly construed and is available only if it
does not result in a greater burden on the market for tax-exempt bonds
than would occur using one of the other allocation methods provided in
this paragraph (h)(4)(v). (See also Sec. 1.148-11(c)(2).)
(vi) Exception for refundings of interim notes. Paragraph (h)(4)(v)
of this section need not be applied to refunding bonds issued to provide
permanent financing for one or more projects if the prior issue had a
term of less than 3 years and was sold in anticipation of permanent
financing, but only if the aggregate term of all prior issues sold in
anticipation of permanent financing was less than 3 years.
(5) Limitation on multi-generation allocations. This paragraph (h)
does not apply to allocations of a multipurpose refunded issue unless
that refunded issue is refunded directly by an issue to which this
paragraph (h) applies. For example, if a 1994 issue refunds a 1984
multipurpose issue, which in turn refunded a 1980 multipurpose issue,
this paragraph (h) applies to allocations of the 1984 issue for purposes
of allocating the refunding purposes of the 1994 issue, but does not
permit allocations of the 1980 issue.
(i) Operating rules for separation of prior issue into refunded and
unrefunded portions--(1) In general. For purposes of paragraph (h)(3)(i)
of this section, the separate purposes of a prior issue include the
refunded and unrefunded portions of the prior issue. Thus, the refunded
and unrefunded portions are treated as separate issues under paragraph
(h)(1) of this section. Those separate issues must satisfy the
requirements of paragraphs (h) and (i) of this section. The refunded
portion of the bonds of a prior issue is based on a fraction the
numerator of which is the principal amount of the prior issue to be paid
with proceeds of the refunding issue and the denominator of which is the
outstanding principal amount of the bonds of the prior issue, each
determined as of the issue date of the refunding issue. (See also
paragraph (b)(2) of this section.)
(2) Allocations of proceeds and investments in a partial refunding.
As of the issue date of a partial refunding issue under this paragraph
(i), unspent proceeds of the prior issue are allocated ratably between
the refunded and unrefunded portions of the prior issue and the
investments allocable to those unspent proceeds are allocated in the
manner required for the allocation of investments to transferred
proceeds under paragraph (c)(1)(ii) of this section.
(3) References to prior issue. If the refunded and unrefunded
portions of a prior issue are treated as separate issues under this
paragraph (i), then, except to the extent that the context clearly
requires otherwise (e.g., references to the aggregate prior issue in the
mixed escrow rule in paragraph (c)(2) of this section), all references
in this section to a prior issue refer only to the refunded portion of
that prior issue.
[T.D. 8476, 58 FR 33541, June 18, 1993; 58 FR 44453, Aug. 23, 1993, as
amended by T.D. 8538, 59 FR 24045, May 10, 1994; T.D. 8718, 62 FR 25512,
May 9, 1997]