• Recently Introduced Bills Affect Public Schools and Energy Tax Credit Bonds
  • December 18, 2009
  • Law Firm: McGuireWoods LLP - Richmond Office
  • Three separate bills recently introduced in Congress modify certain provisions of the tax code affecting Qualified School Construction Bonds (QSCBs), Qualified Zone Academy Bonds (QZABs), New Clean Renewable Energy Bonds (New CREBs) and certain issuers of tax-exempt bonds.

    On Dec. 3 and Dec. 8, 2009, Sen. Chuck Grassley (R- IA), the ranking member of the U.S. Senate Finance Committee, introduced two separate bills, S. 2851 and S. 2826, that among other things, modify QSCBs, QZABs and New CREBs. QSCBs, QZABs and New CREBs provide federal subsidies in the form of tax credits to the financing of certain eligible projects.

    As more particularly described below, the modifications contained in Sen. Grassley’s bills include permanent extensions of QSCBs and QZABs, a temporary extension of New CREBs, the removal of the application of Davis-Bacon prevailing wage rules for QSCBs, QZABs and newly authorized New CREBs, and the elimination of authority for stripping the tax credits on any of them.

    On Dec. 11, 2009, Rep. Travis Childers (D-MS), a member of the House Financial Services Committee, introduced a bill, H. R. 4292 (the Childers Bill), that establishes a direct payment option for QSCBs and QZABs similar to the direct payment option for Build America Bonds (BABs).

    QSCBs and QZABs

    The American Recovery and Reinvestment Tax Act of 2009 (ARRTA) created QSCBs with $11.2 billion in issuing authority for each of 2009 and 2010, subject to provisions allowing carry forward beyond 2010 in certain cases. Sen. Grassley’s Dec. 8 bill, S. 2851, (the Schools Bill) extends the QSCB authorization indefinitely, and provides for a national limitation in each calendar year after 2010 of $11 billion, plus $200,000,000 for Indian tribal governments. QSCBs are intended to lower the cost of financing construction, rehabilitation or repair of public school facilities, including acquisition of land and equipment for such facilities.

    Congress established the QZAB program in 1997 to assist certain eligible schools with repair and rehabilitation of their facilities, equipment acquisition, the purchase of training and course materials, and costs of teacher training. ARRTA retained the initial features of the program and increased the nationwide limitation of QZABs for each of calendar years 2009 and 2010 from $400 million to $1.4 billion.

    Like QSCBs, the current authorization for QZABs does not include national limitation for years beyond 2010, but does allow for their issuance subject to the availability of carry forward allocation. The Schools Bill provides for a national limitation of $700 million for calendar years after 2010, and that figure is subject to adjustment annually based upon inflation.

    For each of QSCBs and QZABs, the Schools Bill eliminates the application of the Davis-Bacon Act’s prevailing wage requirements that was instituted through Section 1601 of ARRTA and provides that the tax credit stripping provisions of Section 54A(i) of the Internal Revenue Code of 1986, as amended (the Code), not apply to either QSCBs or QZABs.

    The provisions of the Schools Bill affecting QSCBs and QZABs apply to obligations issued after Dec. 31, 2010, except that the nullification of applicability of the Davis-Bacon prevailing wage rules would take effect upon the School Bill’s enactment into law.

    The Childers Bill, H. R. 4292, gives issuers the option to issue QSCBs and QZABs as bonds under which an issuer may receive a subsidy payment, similar to the option given to issuers of BABs. Under current law, QSCBs and QZABs may only be issued as "traditional" tax credit bonds under which the purchaser receives all or part of his or her return in the form of a federal income tax credit in lieu of interest paid by the issuer (Tax Credit Bonds).

    The Childers Bill, however, allows issuers to choose whether to issue QSCBs and QZABs as Tax Credit Bonds or as bonds under which the issuer receives a subsidy payment directly from the U.S. Treasury (Direct Payment Bonds) equal to the lesser of (i) the interest paid by the issuer on each payment date; or (ii) the amount of interest which would have been payable if the bonds were issued as Tax Credit Bonds, and such interest were determined at the applicable credit rate for Tax Credit Bonds. Under the Childers Bill, issuers must make an irrevocable election to issue their QSCBs and QZABs as Direct Payment Bonds. The provisions of the Childers Bill affecting QSCBs and QZABs apply to obligations issued after Dec. 31, 2009.

    New CREBs

    Sen. Grassley's Dec. 3 bill, S. 2826, introduced the Clean Renewable Energy Advancement Tax Extension Jobs Act of 2009 (the New CREBs Bill) that, among other things, modifies the provisions of New CREBs.

    The New CREBs Bill increases the national limitation for New CREBs from $2.4 billion to $4.6 billion, and provides that New CREBs issues under such increased authorization are not subject to the Davis-Bacon prevailing wage rules imposed upon New CREBs under Section 1601 of ARRTA.

    In addition, the New CREBs Bill eliminates the availability of the permitted sinking fund structure and the exclusion from the arbitrage limitations of the investment of the proceeds.
    The permitted sinking fund structure allows a qualified tax credit bond issuer to make properly sized sinking fund installments without reducing the face amount of the bond to which the tax credit applies.

    Lastly, the New CREBs Bill eliminates the ability of a holder of a New CREB holder to strip the tax credit. Unless stated otherwise, the changes to New CREBs described above would apply to New CREBs issued after the enactment of the New CREBs Bill.

    New CREBs may be issued to finance certain facilities generating electricity from, among other sources, wind, solar, landfill gas, biomass, geothermal and hydro. Generally, the projects are owned by non-tax paying entities such as state and local governments, Indian tribes, mutual or cooperative electric companies, and public power providers.

    Tax-exempt Bonds

    The Schools Bill increases the ceiling for eligibility of the small issuer exception to rebate found in Section 148(f)(4)(D)(vii) of the Code to $15 million from $5 million for purposes of governmental entities with general taxing powers financing public school facilities on a tax-exempt basis.