Exempt Bond Arbitrage Regs

 DEPARTMENT OF THE TREASURY

 ACTION: Final and temporary regulations.

 SUMMARY: This document contains final and temporary regulations on the arbitrage and related restrictions applicable to tax-exempt bonds issued by State and local governments. Changes to the applicable law were made by the Tax Reform Act of 1986, the Technical and Miscellaneous Revenue Act of 1988, the Revenue Reconciliation Act of 1989, and the Revenue Reconciliation Act of 1990. These regulations affect issuers of tax-exempt bonds and provide guidance for complying with the arbitrage and related restrictions. The text of the temporary regulations also serves as the text of a portion of the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the Federal Register.

 DATES: These regulations are effective on June 9, 1994.

 For dates of applicability of these regulations, see section 1.148-11T.

 FOR FURTHER INFORMATION CONTACT: William P. Cejudo at 202-622-3980 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

PAPERWORK REDUCTION ACT

These regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collection of information contained in these regulations has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-1347.

 For further information concerning this collection of information, and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the cross- referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register.

BACKGROUND

 Section 148 restricts the use of proceeds of tax-exempt State and local bonds to acquire higher yielding investments. Proposed regulations relating to the arbitrage and related rules were published at sections 1.148-0 through 1.148-11, 1.149(d)-1, 1.149(g)- 1, 1.150-1, and 1.150-2 in the Federal Register for November 6, 1992. Written comments were received on the proposed regulations, and additional public comments were received at a public hearing held on February 2, 1993. After consideration of the comments, the proposed regulations were modified and adopted in final form in the Federal Register for June 18, 1993 (the June 1993 regulations).

 This document contains temporary and final regulations amending the Income Tax Regulations (26 CFR part 1) under sections 103, 148, 149, and 150 of the Internal Revenue Code to clarify and revise certain provisions of the June 1993 regulations. The amended provisions of the June 1993 regulations contain references to applicable provisions of the temporary regulations, and the final regulations apply as if the changes contained in the appropriate portion of the temporary regulations were incorporated therein. For example, section 1.148-1(c)(4)(ii)(A) is amended to reference section 1.148-1T(c)(4)(ii)(A), which contains provisions that apply in lieu of those formerly contained in section 1.148-1(c)(4)(ii)(A).

EXPLANATION OF PROVISIONS

A. SECTION 1.103-8T -- INTEREST ON BONDS TO FINANCE CERTAIN EXEMPT FACILITIES.

The June 1993 regulations amended the "official action" rules of section 1.103-8(a)(5) to better coordinate those rules and the reimbursement bond rules of section 1.150-2. The temporary regulations clarify the application of these rules to situations in which the financed facility is placed in service after the issuance of the bonds.

B. SECTION 1.148-1T -- DEFINITIONS AND ELECTIONS.

The June 1993 regulations provide that replacement proceeds may arise if a working capital reserve is financed but not to the extent that the issuer maintained a working capital reserve. The temporary regulations provide guidance to determine whether an issuer has maintained a working capital reserve.

C. SECTION 1.148-4T -- YIELD ON AN ISSUE OF BONDS.

 1. CERTAIN VARIABLE YIELD BONDS AGGREGATED FOR FIXED YIELD TREATMENT. The temporary regulations expand the types of bonds eligible for fixed yield treatment to include certain variable yield bonds that, if aggregated and treated as a single bond, would be a fixed yield bond.

 2. QUALIFIED HEDGING TRANSACTIONS. The June 1993 regulations permit certain qualified hedges to be taken into account in determining the yield on an issue. The temporary regulations revise and clarify these rules. Most significantly, the temporary regulations amend the rules treating certain variable yield bonds as fixed yield bonds to provide fixed yield treatment for bonds that are hedged with certain other hedges, such as certain interest rate caps. Municipal financing transactions with so-called embedded derivative products raise significant policy issues under any contingent interest regulations that may be promulgated under section 1275. For this reason, under the original issue discount regulations, certain of these transactions do not qualify as "variable rate debt instruments" and are subject to the contingent payment rules. The modifications to the qualified hedging rules do not imply a conclusion by the IRS and Treasury that the "interest" payments in these financings are properly treated as tax-exempt. It is expected that future regulations will deal specifically with these issues. In a related change, the temporary regulations clarify that a hedge (other than a qualified hedge) may constitute investment-type property. The proposed amendments to the arbitrage regulations also provide special rules for purposes of determining whether interest rate caps are investment-type property.

D. SECTION 1.148-5T -- YIELD AND VALUATION OF INVESTMENTS.

1. PERMISSIVE SINGLE INVESTMENT RULE. The temporary regulations limit the rule that permits yield restricted investments to be treated as a single investment for arbitrage rebate purposes to nonpurpose investments in a refunding escrow fund and in a sinking fund that is related to the refunding escrow fund.

2. FAIR MARKET VALUATION. The temporary regulations limit the exception to the fair market valuation rule for certain transferred proceeds allocations, universal cap allocations, and investments in a commingled fund to those involving exclusively tax-exempt bond issues.

E. SECTION 1.148-9 -- ARBITRAGE RULES FOR REFUNDING ISSUES.

MULTIPURPOSE ISSUE ALLOCATIONS.

The June 1993 regulations provide that allocations of multipurpose issues must be reasonable. For multipurpose refunding issues, in addition to the reasonableness requirement, the June 1993 regulations provide additional limitations. Comments are requested on possible changes to the allocation rule that generally focuses on matching the debt service structure of the prior issue that would provide additional flexibility for refundings involving extensions of maturity.

F. SECTION 1.148-11T -- EFFECTIVE DATES.

OVERPAYMENT OF REBATE. The temporary regulations allow for retroactive application of the provisions of the June 1993 regulations relating to recovery of overpayments.

G. SECTION 1.149(d)-1T -- LIMITATIONS ON ADVANCE REFUNDINGS.

SAVINGS TEST. The temporary regulations clarify the application of the multipurpose issue rules to the section 149(d) requirement that the refunded bonds in an advance refunding be retired at the first call date if savings are produced.

H. SECTION 1.150-1T -- DEFINITIONS.

DEFINITION OF ISSUE. The June 1993 regulations define "issue" for purposes of the tax-exempt bond restrictions. The temporary regulations clarify certain aspects of this definition including whether bonds are expected to be paid from the same source of funds.

I. EFFECTIVE DATES.

The temporary and final regulations apply to bonds sold after June 4, 1994. In addition, issuers may apply these regulations to other bonds to which the June 1993 regulations apply.

SPECIAL ANALYSES

 It has been determined that this Treasury decision is not a significant regulatory action as defined in EO 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedures Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to these regulations, and, therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

DRAFTING INFORMATION

 The principal author of these regulations is William P. Cejudo, Office of Assistant Chief Counsel (Financial Institutions and Products), IRS. However, other personnel from the IRS and Treasury Department participated in their development.

LIST OF SUBJECTS

26 CFR Part 1

 Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

 Reporting and recordkeeping requirements.

ADOPTION OF AMENDMENTS TO THE REGULATIONS

Accordingly, 26 CFR parts 1 and 602 are amended as follows:

Paragraph 1. The authority citation for part 1 is amended by adding an entry in numerical order to read in part as follows:

Authority: 26 U.S.C. 7805 * * *

Section 1.148-11T also issued under 26 U.S.C. 148(f), (g), and (i).

* * *

Par. 2. In section 1.103-8, paragraph (a)(5) is revised to read as follows:

SECTION 1.103-8 INTEREST ON BONDS TO FINANCE CERTAIN EXEMPT FACILITIES.

(a) * * *

* * * * *

(5) See section 1.103-8T.

* * * * *

Par. 3. Section 1.103-8T is added to read as follows:

SECTION 1.103-8T INTEREST ON BONDS TO FINANCE CERTAIN EXEMPT FACILITIES (TEMPORARY).

(a)(1) through (4) [Reserved]. For guidance see section 1.103-8.

(5) LIMITATION. (i) A facility qualifies under section 1.103-8 only to the extent that there is a valid reimbursement allocation under section 1.150-2 with respect to expenditures that are incurred before the issue date of the bonds to provide the facility and that are to be paid with the proceeds of the issue. In addition, if the original use of the facility begins before the issue date of the bonds, the facility does not qualify under section 1.103-8 if any person that was a substantial user of the facility at any time during the 5-year period before the issue date or any related person to that user receives (directly or indirectly) 5 percent or more of the proceeds of the issue for the user's interest in the facility, and is a substantial user of the facility at any time during the 5-year period after the issue date, unless --

(A) An official intent for the facility is adopted under section 1.150-2 within 60 days after the date on which acquisition, construction, or reconstruction of that facility commenced; and

(B) For an acquisition, no person that is a substantial user or related person after the acquisition date was also a substantial user more than 60 days before the date on which the official intent was adopted.

(ii) A facility the original use of which commences (or the acquisition of which occurs) on or after the issue date of bonds to provide that facility qualifies under section 1.103-8 only to the extent that an official intent for the facility is adopted under section 1.150-2 by the issuer of the bonds within 60 days after the commencement of the construction, reconstruction, or acquisition of that facility. Temporary construction or other financing of a facility prior to the issuance of the bonds to provide that facility will not cause that facility to be one that does not qualify under this paragraph (a)(5)(ii).

(iii) For purposes of paragraph (a)(5)(i) of this section, SUBSTANTIAL USER has the meaning used in section 147(a)(1); RELATED PERSON has the meaning used in section 144(a)(3); and a user that is a governmental unit within the meaning of section 1.103-1 is disregarded.

(iv) Except to the extent provided in section 1.150-2(j) and section 1.148-11T(i), this paragraph (a)(5) applies to bonds issued after June 30, 1993.

Par. 4. In section 1.148-0, paragraph (c) is amended as follows:

1. The introductory text is revised.

2. The entry for section 1.148-4, paragraph (b)(5) is redesignated paragraph (b)(6).

3. A new entry for section 1.148-4, paragraph (b)(5) is added.

4. An entry for section 1.148-11, paragraph (i) is added.

SECTION 1.148-0 SCOPE AND TABLE OF CONTENTS.

* * * * *

(c) TABLE OF CONTENTS. This paragraph (c) lists the table of contents for sections 1.148-1, 1.148-2, 1.148-3, 1.148-4, 1.148-5, 1.148-6, 1.148-7, 1.148-8, 1.148-9, 1.148-10 and 1.148-11.

* * * * *

SECTION 1.148-4 YIELD ON AN ISSUE OF BONDS.

* * * * *

(b) * * *

(5) Special aggregation rule treating certain bonds as a single fixed yield bond.

* * * * *

SECTION 1.148-11 EFFECTIVE DATES

* * * * *

(i) Transition rule for certain amendments.

Par. 5. In section 1.148-1, paragraph (c)(4)(ii)(A) is revised to read as follows:

SECTION 1.148-1 DEFINITIONS AND ELECTIONS.

* * * * *

(c) * * *

(4) * * *

(ii) * * *

(A) IN GENERAL. See section 1.148-1T(c)(4)(ii)(A).

* * * * *

Par. 6. Section 1.148-1T is added to read as follows:

SECTION 1.148-1T DEFINITIONS AND ELECTIONS (TEMPORARY).

(a) [Reserved]. For guidance see section 1.148-1.

(b) CERTAIN DEFINITIONS.

INVESTMENT-TYPE PROPERTY. See section 1.148-1(b). Investment- type property also includes a contract that would be a hedge (within the meaning of section 1.148-4(h)) except that it contains a significant investment element.

(c) through (c)(4)(i) [Reserved]. For guidance see section 1.148-1.

(c)(4)(ii) BONDS FINANCING A WORKING CAPITAL RESERVE -- (A) IN GENERAL. Except as otherwise provided in section 1.148-1(c)(4)(ii)(B), replacement proceeds arise to the extent a working capital reserve is, directly or indirectly, financed with the proceeds of the issue (regardless of the expenditure of proceeds of the issue). Thus, for example, if an issuer that does not maintain a working capital reserve borrows to fund such a reserve, the issuer will have replacement proceeds. To determine the amount of a working capital reserve maintained, an issuer may use the average amount maintained as a working capital reserve during annual periods of at least one year, the last of which ends within a year before the issue date. For example, the amount of a working capital reserve may be computed using the average of the beginning or ending monthly balances of the amount maintained as a reserve (net of unexpended gross proceeds) during the one year period preceding the issue date.

Par. 7. In section 1.148-2, paragraph (b)(2)(ii) is revised to read as follows:

SECTION 1.148-2 GENERAL ARBITRAGE YIELD RESTRICTION RULES.

* * * * *

(b) * * *

(2) * * *

(ii) EXCEPTION TO CERTIFICATION REQUIREMENTS. See section 1.148-2T(b)(2)(ii).

* * * * *

Par. 8. Section 1.148-2T is added to read as follows:

SECTION 1.148-2T GENERAL ARBITRAGE YIELD RESTRICTION RULES (TEMPORARY)

(a) through (b)(2)(i) [Reserved]. For guidance see section 1.148-2.

(b)(2)(ii) EXCEPTIONS TO CERTIFICATION REQUIREMENT. An issuer is not required to make a certification for an issue under section 1.148-2(b)(2)(i) if --

(A) 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

(B) The issue price of the issue does not exceed $1,000,000.

Par. 9. In section 1.148-3, paragraph (h)(3) is amended by adding a sentence after the last sentence to read as follows:

SECTION 1.148-3 GENERAL ARBITRAGE REBATE RULES.

* * * * *

(h) * * *

(3) * * * See also section 1.148-3T(h)(3).

* * * * *

Par. 10. Section 1.148-3T is added to read as follows:

SECTION 1.148-3T GENERAL ARBITRAGE REBATE RULES (TEMPORARY)

(a) through (h)(2) [Reserved]. For guidance see section 1.148-3.

(h)(3) WAIVERS OF THE PENALTY. For purposes of section 1.148-3(h)(3), willful neglect does not include a failure that is attributable solely to the permissible retroactive selection of a short first bond year if the rebate amount that the issuer failed to pay is paid within 60 days of the selection of that bond year.

Par. 11. Section 1.148-4 is amended as follows:

1. Paragraph (b)(5) is redesignated as paragraph (b)(6).

2. New paragraph (b)(5) is added.

3. Paragraph (g) is revised.

4. Paragraph (h)(1) is revised.

5. Paragraph (h)(2)(vii) is revised.

6. Paragraph (h)(2)(ix) is revised.

7. Paragraphs (h)(3), (4), and (5) are revised.

8. The revised and added provisions read as follows:

SECTION 1.148-4 YIELD ON AN ISSUE OF BONDS.

* * * * *

(b) * * *

(5) SPECIAL AGGREGATION RULE TREATING CERTAIN BONDS AS A SINGLE FIXED YIELD BOND. See section 1.148-4T(b)(5).

* * * * *

(g) YIELD ON CERTAIN MORTGAGE REVENUE AND STUDENT LOAN BONDS. See section 1.148-4T(g).

(h) * * *

(1) IN GENERAL. See section 1.148-4T(h)(1).

(2) * * *

* * * * *

(vii) TIMING AND DURATION. See section 1.148-4T(h)(2)(vii).

* * * * *

(ix) IDENTIFICATION. See section 1.148-4T(h)(2)(ix).

(3) ACCOUNTING FOR QUALIFIED HEDGES. See section 1.148-4T(h)(3).

(4) CERTAIN VARIABLE YIELD BONDS TREATED AS FIXED YIELD BONDS. See section 1.148-4T(h)(4).

(5) AUTHORITY OF THE COMMISSIONER. See section 1.148-4T(h)(6).

Par. 12. Section 1.148-4T is added to read as follows:

SECTION 1.148-4T YIELD ON AN ISSUE OF BONDS (TEMPORARY).

(a) through (b)(4) [Reserved]. For guidance see section 1.148-4.

(b)(5) SPECIAL AGGREGATION RULE TREATING CERTAIN BONDS AS A SINGLE FIXED YIELD BOND. Two variable yield bonds of an issue are treated in the aggregate as a single fixed yield bond if --

(i) Aggregate treatment would result in the single bond being a fixed yield bond; and

(ii) The terms of the bonds do not contain any features that could distort the aggregate fixed yield from what the yield would be if a single fixed yield bond were issued. For example, if an issue contains a bond bearing interest at a floating rate and a related bond bearing interest at a rate equal to a fixed rate minus that floating rate, those two bonds are treated as a single fixed yield bond only if neither bond may be redeemed unless the other bond is also redeemed at the same time.

(c) through (f) [Reserved]. For guidance see section 1.148-4.

(g) YIELD ON CERTAIN MORTGAGE REVENUE AND STUDENT LOAN BONDS. For purposes of section 148 and section 1.148-4, section 143(g)(2)(C)(ii) applies to the computation of yield on an issue of qualified mortgage bonds or qualified veterans' mortgage bonds. For purposes of applying sections 148 and 143(g) to a variable yield issue of qualified mortgage bonds, qualified veterans' mortgage bonds, or qualified student loan bonds, the yield on that issue is computed over the term of the issue, and section 1.148-4(d) does not apply to the issue. As of any date before the final maturity date, the yield over the term of the issue is based on the actual amounts paid or received to that date and the amounts that are reasonably expected (as of that date) to be paid or received over the remaining term of the issue.

(h) QUALIFIED HEDGING TRANSACTIONS -- (1) IN GENERAL. Payments made or received by an issuer under a qualified hedge (as defined in section 1.148-4(h)(2)) relating to bonds of an issue are taken into account (as provided in paragraph (h)(3) of this section) to determine the yield on the issue. Except as provided in paragraphs (h)(4) and (h)(5)(ii)(C) of this section, the bonds to which a qualified hedge relates are treated as variable yield bonds. These hedging rules apply solely for purposes of sections 143(g), 148, and 149(d).

(2)(i) through (vi) [Reserved] For guidance see section 1.148-4(h)(2).

(2)(vii) TIMING AND DURATION. For a contract to be a qualified hedge under section 1.148-4(h)(2), payments must not begin to accrue under the contract on a date earlier than the issue date of the hedged bonds and must not accrue longer than the hedged interest payments on the hedged bonds.

(viii) [Reserved] For guidance see section 1.148-4(h).

(ix) IDENTIFICATION. For a contract to be a qualified hedge under section 1.148-4(h)(2), the contract must be identified by the actual issuer on its books and records maintained for the hedged bonds not later than three days after the date on which the parties enter into the contract. The identification must specify the hedge provider, the terms of the contract, and the hedged bonds. The identification must contain sufficient detail to establish that the requirements of section 1.148-4(h)(2), and if applicable, paragraph (h)(4) of this section are satisfied. The existence of the hedge must be noted on all forms filed with the Internal Revenue Service for the issue on or after the date on which the hedge is entered into.

(3) ACCOUNTING FOR QUALIFIED HEDGES -- (i) IN GENERAL. Except as otherwise provided in paragraph (h)(4) of this section, payments made or received by the issuer under a qualified hedge are treated as payments made or received, as appropriate, on the hedged bonds that are taken into account in determining the yield on those bonds. These payments are reasonably allocated to the hedged bonds in the period to which the payments relate, as determined under paragraph (h)(3)(iii) of this section. Payments made or received by the issuer include payments deemed made or received when a contract is terminated or deemed terminated under this paragraph (h)(3). Payments reasonably allocable to the reduction of risk of interest rate changes and to the hedge provider's overhead under this paragraph (h) are included as payments made or received under a qualified hedge.

(ii) EXCLUSIONS FROM HEDGE. Payments for services or other items under the contract that are not expressly treated as payments under the qualified hedge under paragraph (h)(3)(i) of this section are not payments with respect to a qualified hedge.

(iii) TIMING AND ALLOCATION OF PAYMENTS. The period to which a payment made by the issuer relates is determined under general Federal income tax principles, including, without limitation, section 1.446-3, and adjusted as necessary to reflect the end of a computation period and the start of a new computation period. Except as provided in paragraphs (h)(3)(iv) and (h)(5)(ii) of this section, a payment received by the issuer is taken into account in the period that the interest payment that the payment hedges is required to be made.

(iv) TERMINATION PAYMENTS -- (A) TERMINATION DEFINED. A termination of a qualified hedge includes any sale or other disposition of the hedge by the issuer, or the acquisition by the issuer of an offsetting hedge. A deemed termination occurs when the hedged bonds are redeemed and when a hedge ceases to be a qualified hedge of the hedged bonds. In the case of an assignment by a hedge provider of its remaining rights and obligations on the hedge to a third party or a modification of the hedging contract, the assignment or modification is treated as a termination with respect to the issuer only if it results in a deemed exchange of the hedge and a realization event under section 1001.

(B) GENERAL RULE. A payment made or received by an issuer to terminate a qualified hedge, including loss or gain realized or deemed realized, is treated as a payment made or received on the hedged bonds, as appropriate. The payment is reasonably allocated to the remaining periods originally covered by the terminated hedge in a manner that reflects the economic substance of the hedge.

(C) SPECIAL RULE FOR TERMINATIONS WHEN BONDS ARE REDEEMED. Except as otherwise provided in this paragraph (h)(3)(iv)(C) and in paragraph (h)(3)(iv)(D) of this section, when a qualified hedge is deemed terminated because the hedged bonds are redeemed, the fair market value of the contract on the redemption date is treated as a termination payment made or received on that date. When hedged bonds are redeemed, any payment received by the issuer on termination of a hedge, including a termination payment or a deemed termination payment, reduces, but not below zero, the interest payments made by the issuer on the hedged bonds in the computation period ending on the termination date. The remainder of the payment, if any, is reasonably allocated over the bond years in the immediately preceding computation period or periods to the extent necessary to eliminate the excess.

(D) SPECIAL RULES FOR REFUNDINGS. To the extent that the hedged bonds are redeemed using the proceeds of a refunding issue, the termination payment is accounted for under paragraph (h)(3)(iv)(B) of this section by treating it as a payment on the refunding issue, rather than the hedged bonds. In addition, to the extent that the refunding issue, rather than the hedged bonds, has been redeemed, paragraph (h)(3)(iv)(C) of this section applies to the termination payment by treating it as a payment on the redeemed refunding issue.

(E) SAFE HARBOR FOR CERTAIN NON-LEVEL PAYMENTS. A non-level payment to terminate a hedge does not result in that hedge failing to satisfy the applicable provisions of paragraph (h)(3)(iv)(B) of this section if the payment is allocated to each bond year for which the hedge would have been in effect in accordance with this paragraph (h)(3)(iv)(E). For a variable yield issue, an equal amount (or for any short bond year, a proportionate amount of the equal amount) must be allocated to each bond year such that the sum of the present values of the annual amounts equals the present value of the non- level payment. Present value is computed as of the day the hedge is terminated, using the yield on the hedged bonds, determined without regard to the non-level payment. The yield used for this purpose is computed for the period beginning on the first date the hedge is in effect and ending on the date the hedge is terminated. On the other hand, for a fixed yield issue, the non-level payment is taken into account as a single payment on the date it is paid.

(4) CERTAIN VARIABLE YIELD BONDS TREATED AS FIXED YIELD BONDS -- (i) IN GENERAL. Except as otherwise provided in this paragraph (h)(4), if the issuer of variable yield bonds enters into a qualified hedge, the hedged bonds are treated as fixed yield bonds paying a fixed interest rate if:

(A) START DATE. The date on which payments begin to accrue on the hedge is not later than 15 days after the issue date of the hedged bonds.

(B) MATURITY. The term of the hedge is equal to the entire period during which the hedged bonds bear interest at variable interest rates.

(C) PAYMENTS CLOSELY CORRESPOND. Payments to be received under the hedge correspond closely in time to the hedged portion of the payments on the hedged bonds. Hedge payments received within 15 days of the related payments on the hedged bonds generally so correspond.

(D) AGGREGATE PAYMENTS FIXED. Taking into account all payments made and received under the hedge and all payments on the hedged bonds (i.e., after netting all payments), the issuer's aggregate payments are fixed and determinable as of a date not later than 15 days after the issue date of the hedged bonds. Payments on bonds are treated as fixed for purposes of this paragraph (h)(4)(i)(D) if payments on the bonds are based, in whole or in part, on one interest rate, payments on the hedge are based, in whole or in part, on a second interest rate that is substantially the same as, but not identical to, the first interest rate and payments on the bonds would be fixed if the two rates were identical. Rates are treated as substantially the same if they are reasonably expected to be substantially the same throughout the term of the hedge. For example, an objective 30-day tax-exempt variable rate index or other objective index (e.g., J.J. Kenny Index, PSA Municipal swap index, a percentage of LIBOR) may be substantially the same as an issuer's individual 30- day interest rate.

(ii) ACCOUNTING. Except as otherwise provided in this paragraph (h)(4)(ii), in determining yield on the hedged bonds, all the issuer's actual interest payments on the hedged bonds and all payments made and received on a hedge described in paragraph (h)(4)(i) of this section are taken into account. If payments on the bonds and payments on the hedge are based, in whole or in part, on variable interest rates that are substantially the same within the meaning of paragraph (h)(4)(i)(D) of this section (but not identical), yield on the issue is determined by treating the variable interest rates as identical. For example, if variable rate bonds bearing interest at a weekly rate equal to the rate necessary to remarket the bonds at par are hedged with an interest rate swap under which the issuer receives payments based on a short-term floating rate index that is substantially the same as, but not identical to, the weekly rate on the bonds, the interest payments on the bonds are treated as equal to the payments received by the issuer under the swap for purposes of computing the yield on the bonds.

(iii) EFFECT OF TERMINATION -- (A) IN GENERAL. Except as otherwise provided in this paragraph (h)(4)(iii) and paragraph (h)(5) of this section, the issue of which the hedged bonds are a part is treated as if it were reissued as of the termination date of the qualified hedge covered by paragraph (h)(4)(i) of this section in determining yield on the hedged bonds for purposes of section 1.148-3. The redemption price of the retired issue and the issue price of the new issue equal the aggregate values of all the bonds of the issue on the termination date. In computing the yield on the new issue for this purpose, any termination payment is accounted for under paragraph (h)(3)(iv) of this section, applied by treating the termination payment as made or received on the new issue under this paragraph (h)(4)(iii).

(B) EFFECT OF EARLY TERMINATION. Except as otherwise provided in this paragraph (h)(4)(iii), the general rules of paragraph (h)(4)(i) of this section do not apply in determining the yield on the hedged bonds for purposes of section 1.148-3 if the hedge is terminated or deemed terminated within 5 years after the issue date of the issue of which the hedged bonds are a part. Thus, the hedged bonds are treated as variable yield bonds for purposes of section 1.148-3 from the issue date.

(C) CERTAIN TERMINATIONS DISREGARDED. This paragraph (h)(4)(iii) does not apply to a termination if, based on the facts and circumstances (e.g., taking into account both the termination and any qualified hedge that immediately replaces the terminated hedge), there is no change in the yield. In addition, this paragraph (h)(4)(iii) does not apply to a termination caused by the bankruptcy or insolvency of the hedge provider if the Commissioner determines that the termination occurred without any action by the issuer (other than to protect its rights under the hedge).

(5) SPECIAL RULES FOR CERTAIN HEDGES -- (i) CERTAIN ACQUISITION PAYMENTS. A payment to the issuer by the hedge provider (e.g., an up- front payment for an off-market swap) in connection with the acquisition of a hedge that, but for that payment, would be a qualified hedge, does not cause the hedge to fail to be a qualified hedge provided the payment to the issuer and the issuer's payments under the hedge in excess of those that it would make if the hedge bore rates equal to the on-market rates for the hedge are separately identified in a certification of the hedge provider and not taken into account in determining the yield on the issue of which the hedged bonds are a part. The on-market rates are determined as of the date the parties enter into the contract.

(ii) ANTICIPATORY HEDGES -- (A) IN GENERAL. A contract does not fail to be a hedge under section 1.148-4(h)(2)(i)(A) solely because it is entered into with respect to an anticipated issuance of tax- exempt bonds. The identification required under section 1.148-4T(h)(2)(ix) must specify the reasonably expected governmental purpose, principal amount, and issue date of the hedged bonds, and the manner in which interest is reasonably expected to be computed.

(B) SPECIAL RULES. Payments made in connection with the issuance of a bond to terminate or otherwise close (TERMINATE) an anticipatory hedge of that bond do not prevent the hedge from satisfying the requirements of section 1.148-4(h)(2)(vi) and paragraph (h)(2)(vii) of this section. Amounts received or deemed to be received by the issuer in connection with the issuance of the hedged bonds to terminate an anticipatory hedge are treated as proceeds of the hedged bonds.

(C) FIXED YIELD TREATMENT. A bond that is hedged with an anticipatory hedge is a fixed yield bond if, taking into account payments on the hedge that are made or fixed on or before the issue date of the bond and the payments to be made on the bond, the bond satisfies the definition of fixed yield bond. See also paragraph (h)(4) of this section.

(6) AUTHORITY OF THE COMMISSIONER -- (i) IN GENERAL. A contract is not a qualified hedge if the Commissioner determines, based on all the facts and circumstances, that treating the contract as a qualified hedge would provide a material potential for arbitrage, or a principal purpose for entering into the contract is that arbitrage potential. For example, a contract that requires a substantial nonperiodic payment may constitute, in whole or part, an embedded loan, investment-type property, or other investment.

(ii) OTHER QUALIFIED HEDGES. The Commissioner, by publication of a revenue ruling or revenue procedure, may specify contracts that do not otherwise meet the requirements of section 1.148-4(h)(2) as qualified hedges and contracts that do not otherwise meet the requirements of paragraph (h)(4) of this section as causing the hedged bonds to be treated as fixed yield bonds.

(iii) RECOMPUTATION OF YIELD. If an issuer enters into a hedge that is not properly identified, fails to properly associate an anticipatory hedge with the hedged bonds, or otherwise fails to meet the requirements of this section, the Commissioner may recompute the yield on the issue taking the hedge into account if the failure to take the hedge into account distorts that yield or otherwise fails to clearly reflect the economic substance of the transaction.

Par. 13. Section 1.148-5 is amended as follows:

1. Paragraph (b)(2)(iii) is revised.

2. Paragraph (c)(2)(i) is revised.

3. Paragraph (c)(3)(ii) is revised.

4. Paragraph (d)(3)(ii) is revised.

5. A sentence is added at the end of paragraph (e)(2)(ii)(B).

6. Paragraph (e)(2)(iii) is revised.

7. The revised provisions read as follows:

SECTION 1.148-5 YIELD AND VALUATION OF INVESTMENTS.

* * * * *

(b) * * *

(2) * * *

(iii) PERMISSIVE APPLICATION OF SINGLE INVESTMENT RULES TO CERTAIN YIELD RESTRICTED INVESTMENTS FOR ALL PURPOSES OF SECTION 148. See section 1.148-5T(b)(2)(iii).

* * * * * (c) * * *

(2) * * *

(i) IN GENERAL. See section 1.148-5T(c)(2)(i).

* * * * *

(3) * * *

(ii) EXCEPTION TO YIELD REDUCTION PAYMENTS RULE FOR ADVANCE REFUNDING ISSUES. See section 1.148-5T(c)(3)(ii).

(d) * * *

(3) * * *

(ii) EXCEPTION TO FAIR MARKET VALUE REQUIREMENT FOR TRANSFERRED PROCEEDS ALLOCATIONS, UNIVERSAL CAP ALLOCATIONS, AND COMMINGLED FUNDS. See section 1.148-5T(d)(3)(ii).

(e) * * *

(2) * * *

(ii) * * *

(B) * * * See also section 1.148-5T(e)(2)(B).

(iii) SPECIAL RULE FOR GUARANTEED INVESTMENT CONTRACTS. See section 1.148-5T(e)(2)(iii).

* * * * *

Par. 14. Section 1.148-5T is added to read as follows:

SECTION 1.148-5T YIELD AND VALUATION OF INVESTMENTS (TEMPORARY)

(a) through (b)(2)(ii) [Reserved]. For guidance see section 1.148-5.

(b)(2)(iii) PERMISSIVE APPLICATION OF SINGLE INVESTMENT RULES TO CERTAIN YIELD RESTRICTED INVESTMENTS FOR ALL PURPOSES OF SECTION 148. For all purposes of section 148, an issuer may treat all of the yield restricted nonpurpose investments in a refunding escrow and a sinking fund that is reasonably expected as of the issue date to be maintained to reduce the yield on the investments in the refunding escrow as a single investment having a single yield, determined under section 1.148(b)(2).

(b)(2)(iv) through (c)(1) [Reserved]. For guidance see section 1.148-5.

(c)(2) MANNER OF PAYMENT -- (i) In general. Except as otherwise provided in section 1.148-5(c)(2)(ii), an amount is paid under section 1.148-5(c) if it is paid to the United States at the same time and in the same manner as rebate amounts are required to be paid or at such other time or in such manner as the Commissioner may prescribe. For example, yield reduction payments must be made on or before the date of required rebate installment payments as described in section 1.148-3(f). The date a payment is required to be paid is determined without regard to section 1.148-3(h). An amount that is paid untimely is not taken into account under this paragraph (c) unless the Commissioner determines that the failure to pay timely is not due to willful neglect. The provisions of section 1.148-3(i) apply to payments made under section 1.148-5(c).

(c)(2)(ii) through (c)(3)(i) [Reserved] For guidance see section 1.148-5.

(c)(3)(ii) EXCEPTION TO YIELD REDUCTION PAYMENTS RULE FOR ADVANCE REFUNDING ISSUES. Section 1.148-5(c)(1) does not apply to investments allocable to gross proceeds of an advance refunding issue, other than --

(A) Transferred proceeds to which section 1.148-5(c)(3)(i)(C) applies;

(B) Replacement proceeds to which section 1.148-5(c)(3)(i)(F) applies; and

(C) Transferred proceeds to which section 1.148-5(c)(3)(i)(E) applies, but only to the extent necessary to satisfy yield restriction under section 148(a) on those proceeds treating all investments allocable to those proceeds as a separate class.

(d)(1) through (d)(3)(i) [Reserved]. For guidance see section 1.148-5.

(d)(3)(ii) EXCEPTION TO FAIR MARKET VALUE REQUIREMENT FOR TRANSFERRED PROCEEDS ALLOCATIONS, UNIVERSAL CAP ALLOCATIONS, AND COMMINGLED FUNDS. Section 1.148-5(d)(3)(i) does not apply if the investment is allocated from one issue to another issue as a result of the transferred proceeds allocation rule under section 1.148-9(b) or the universal cap rule under section 1.148-6(b)(2), provided that both issues consist exclusively of tax-exempt bonds. In addition, section 1.148-5(d)(3)(i) does not apply to investments in a commingled fund (other than a bona fide debt service fund) unless it is an investment being initially deposited in or withdrawn from a commingled fund described in section 1.148-6(e)(5)(iii).

(e)(1) through (e)(2)(ii)(A) [Reserved]. For guidance see section 1.148-5.

(e)(2)(ii)(B) EXTERNAL COMMINGLED FUNDS. For any semiannual period, a commingled fund satisfies the 10 percent requirement of section 1.148-5(e)(2)(ii)(B) if --

(1) Based on average amounts on deposit, this requirement was satisfied for the prior semiannual period; and

(2) The fund does not accept deposits that would cause it to fail to meet this requirement.

(iii) SPECIAL RULE FOR GUARANTEED INVESTMENT CONTRACTS. For a guaranteed investment contract, a broker's commission or similar fee paid on behalf of either an issuer or the provider is treated as an administrative cost and, except in the case of an issue that satisfies section 148(f)(4)(D)(i), is not a qualified administrative cost to the extent that the present value of the commission, as of the date the contract is allocated to the issue, exceeds the present value of annual payments equal to .05 percent of the weighted average amount reasonably expected to be invested each year of the term of the contract. For this purpose, present value is computed using the taxable discount rate used by the parties to compute the commission or, if not readily ascertainable, a reasonable taxable discount rate.

Par. 15. In section 1.148-6, paragraph (d)(3)(iii)(C) is reviled to read as follows:

SECTION 1.148-6 GENERAL ALLOCATION AND ACCOUNTING RULES.

* * * * *

(d) * * *

(3) * * *

(iii) * * *

(C) QUALIFIED ENDOWMENT FUNDS TREATED AS UNAVAILABLE. See section 1.148-6T(d)(3)(iii)(C)

* * * * *

Par. 16. Section 1.148-6T is added to read as follows:

SECTION 1.148-6T GENERAL ALLOCATION AND ACCOUNTING RULES (TEMPORARY)

(a)through (d)(3)(iii) (B) [Reserved]. For guidance see section 1.148-6.

(d)(3)(iii)(C) QUALIFIED ENDOWMENT FUNDS TREATED AS UNAVAILABLE. For a 501(c)(3) organization, a qualified endowment fund is treated as unavailable. A fund is a qualified endowment fund if --

(1) The fund is derived from gifts or bequests, or the income thereon, that were neither made nor reasonably expected to be used to pay working capital expenditures;

(2) Pursuant to reasonable, established practices of the organization, the governing body of the 501(c)(3) organization designates and consistently operates the fund as a permanent endowment fund or quasi-endowment fund restricted as to use; and

(3) There is an independent verification (e.g., from an independent certified public accountant) that the fund is reasonably necessary as part of the organization's permanent capital.

Par. 17. Section 1.148-9 is amended as follows:

1. Paragraph (c)(2)(ii)(B) is revised.

2. Paragraph (h)(4)(vi) is added.

3. The revised and added provisions read as follows:

SECTION 1.148-9 ARBITRAGE RULES FOR REFUNDING ISSUES.

* * * * *

(c) * * *

(2) * * *

(ii) * * *

(B) PERMISSIVE ALLOCATION OF NON-PROCEEDS TO EARLIEST EXPENDITURES. See section 1.148-9T(c)(2)(ii)(B)

* * * * *

(h) * * *

(4) * * *

(vi) See section 1.148-9T(h)(4)(vi)

* * * * *

Par. 18. Section 1.148-9T is added to read as follows:

SECTION 1.148-9T ARBITRAGE RULES FOR REFUNDING ISSUES (TEMPORARY)

(a) through (c)(2)(ii)(A) [Reserved]. For guidance see section 1.148-9.

(c)(2)(ii)(B) PERMISSIVE ALLOCATION OF NON-PROCEEDS TO EARLIEST EXPENDITURES. Excluding amounts covered by section 1.148-9(c)(2)(ii) (A) and subject to any required earlier expenditure of those amounts, any amounts in a mixed escrow that are not proceeds of 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) through (h)(4)(v) [Reserved]. For guidance see section 1.148-9.

(h)(4)(vi) EXCEPTION FOR REFUNDINGS OF INTERIM NOTES. Section 1.14B-9(h)(4)(v) 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.

Par. 19. Section 1.148-10 is amended as follows:

1. Paragraph (b)(2) is revised.

2. A sentence is added at the end of paragraph (c)(2)(ix)

3. The added and revised provisions read as follows:

SECTION 1.148-10 ANTI-ABUSE RULES AND AUTHORITY OF COMMISSIONER.

* * * * *

(b) * * *

(2) APPLICATION. See section 1.148-10T(b)(2)

(c) * * *

(2) * * *

(ix) * * * See also section 1.148-10T(c)(2)(ix)

* * * * *

Par. 20. Section 1.148-10T is added to read as follows:

SECTION 1.148-10T ANTI-ABUSE RULES AND AUTHORITY OF COMMISSIONER (TEMPORARY)

(a) through (b)(1) [Reserved]. For guidance see section 1.148-10.

(b)(2) APPLICATION. The provisions of section 1.148-10(b) only apply to the portion of an issue that, as a result of actions taken (or actions not taken) after the issue date, overburdens the market for tax-exempt bonds, except that for an issue that is reasonably expected as of the issue date to overburden the market, those provisions apply to all of the gross proceeds of the issue.

(c) through (c)(2)(viii) [Reserved]. For guidance see section 1.148-10.

(c)(2)(ix) For purposes of section 1.148-10(c)(2), excess gross proceeds do not include gross proceeds allocable to fees for a qualified hedge for the refunding issue.

Par. 21. Section 1.148-11 is amended by adding paragraph (i) to read as follows:

SECTION 1.148-11 EFFECTIVE DATES.

* * * * *

(i) TRANSITION RULE FOR CERTAIN AMENDMENTS. See section 1.148-11T(i)

Par. 22. Section 1.148-11T is added to read as follows:

SECTION 1.148-11T EFFECTIVE DATES (TEMPORARY)

(a) through (c)(3) [Reserved]. For guidance see section 1.148-11.

(c)(4) RETROACTIVE APPLICATION OF OVERPAYMENT RECOVERY PROVISIONS. An issuer may apply the provisions of section 1.148-3(i) to any issue that is subject to section 148(f) or to sections 103(c)(6) or 103A(i) of the Internal Revenue Code of 1954.

(d) through (h) [Reserved]. For guidance see section 1.148-11.

(i) TRANSITION RULE FOR CERTAIN AMENDMENTS. Sections 1.103-8(a)(5), 1.148-1 through 1.148-11, 1.149(d)-1, and 1.150-1, as amended on [INSERT THE DATE 30 DAYS AFTER THE DATE THIS DOCUMENT IS FILED WITH THE FEDERAL REGISTER] (the EFFECTIVE DATE) to reflect amendments to sections 1.103-8(a)(5), 1.148-1 through 1.148-11, 1.149(d)-1, and 1.150-1 (as contained in 26 CFR Part 1 edition revised April 1, 1994), and sections 1.103-8T, 1.148-1T, 1.148-2T, 1.148-3T, 1.148-4T, 1.148-5T, 1.148-6T, 1.148-9T, 1.148-10T, 1.148-11T, 1.149(d)-1T, and 1.150-1T apply in whole, but not in part, --

(1) To bonds sold after the effective date;

(2) To bonds issued prior to July 1, 1993, if the issuer, after the effective date, first applies sections 1.148-1 through 1.148-11, to the bonds under section 1.148-11(b) or (c); and

(3) At the option of the issuer, to bonds to which sections 1.148-1 through 1.148-11, as in effect before the effective date, apply.

Par. 23. In section 1.149(d)-1, paragraph (f)(3) is revised to read as follows:

SECTION 1.149(D)-1 LIMITATIONS ON ADVANCE REFUNDINGS.

* * * * *

(3) APPLICATION OF SAVINGS TEST TO MULTIPURPOSE ISSUES. See section 1.149(d)-1T.

* * * * *

Par. 24. Section 1.149(d)-1T is added to read as follows:

SECTION 1.149(D)-1T LIMITATIONS ON ADVANCE REFUNDINGS (TEMPORARY).

(a) through (f)(2) [Reserved] . For guidance see section 1.149(d)-1.

(f)(3) APPLICATION OF SAVINGS TEST TO MULTIPURPOSE ISSUES. Except as otherwise provided in this paragraph (f)(3), the multipurpose issue rules in section 1.148-9(h) apply for purposes of the savings test. If any separate issue in a multipurpose issue increases the aggregate present value debt service savings on the entire multipurpose issue or reduces the present value debt service losses on that entire multipurpose issue, that separate issue satisfies the savings test.

Par. 25. Section 1.150-1 is amended as follows:

1. Paragraph (c)(1) is revised.

2. The paragraph heading for (c)(4) is revised.

3. Paragraph (c)(4)(iii) is added.

4. The revised and added provisions read as follows:

SECTION 1.150-1 DEFINITIONS

* * * * *

(c) DEFINITION OF ISSUE -- (1) IN GENERAL. See section 1.150- 1T(c)(1)

* * * * *

(4) Special rules for certain financings -- (i) * * *

* * * * *

(iii) See section 1.150-1T(c)(4)(iii)

* * * * *

Par. 26. Section 1.150-1T is added to read as follows:

SECTION 1.150-IT DEFINITIONS (TEMPORARY).

(a) through (b) [Reserved]. For guidance see section 1.150-1.

(c) DEFINITION OF ISSUE -- (1) IN GENERAL. Except as otherwise provided, the provisions of this paragraph (c) apply for all purposes of sections 103 and 141 through 150. Except as otherwise provided in this paragraph (c), two or more bonds are treated as part of the same issue if all of the following factors are present:

(i) SOLD AT SUBSTANTIALLY THE SAME TIME. The bonds are sold at substantially the same time. Bonds are treated as sold at substantially the same time if they are sold less than 15 days apart. For this purpose only, a variable yield bond is treated as sold on its issue date.

(ii) SOLD PURSUANT TO THE SAME PLAN OF FINANCING. The bonds are sold pursuant to the same plan of financing. Factors material to the plan of financing include the purposes for the bonds and the structure of the financing. For example, generally --

(A) Bonds to finance a single facility or related facilities are part of the same plan of financing;

(B) Short-term bonds to finance working capital expenditures and long-term bonds to finance capital projects are not part of the same plan of financing; and

(C) Certificates of participation in a lease and general obligation bonds secured by tax revenues are not part of the same plan of financing.

(iii) PAYABLE FROM SAME SOURCE OF FUNDS. The bonds are reasonably expected to be paid from substantially the same source of funds, determined without regard to guarantees from parties unrelated to the obligor.

(2) through (4)(ii) [Reserved]. For guidance see section 1.150- 1(c)(3) through (c)(4)(ii)

(c)(4)(iii) CERTAIN GENERAL OBLIGATION BONDS. Bonds are part of the same issue if secured by a pledge of the issuer's full faith and credit (or a substantially similar pledge) and sold and issued on the same dates pursuant to a single offering document.

(5) [Reserved]. For guidance see section 1.150-1(c)(5)

(6) SALE DATE. The sale date of a bond is the first day on which there is a binding contract in writing for the sale or exchange of the bond.