This memorandum provides a brief explanation and overview of tax-exempt financing for governmental purposes under Georgia law and the Internal Revenue Code of 1986. A summary is presented of the state law procedures and requirements for issuance of bonds and other forms of financing by local governments and public authorities. Rules governing the exemption from federal income taxation of interest paid on such obligations are also outlined. A variety of governmental debt obligations may qualify for tax exemption (e.g., bonds, notes, revenue certificates, bank loans, leases and certificates of participation), and these are sometimes referred to interchangeably as “bonds,” “debt,” or “obligations.” This memorandum does not address private activity bond financing for private companies or Section 501(c)(3) organizations. For further information on these subjects you may request overviews of those subjects.
Georgia Law of Debt Issuance
Issuers. Tax-exempt obligations may be issued by cities, counties and most school boards (each, a “Local Government”). Further, any Local Government can establish a special district within its boundaries and issue debt, payable from taxes or assessments limited to that district, following a referendum of the voters in the district. Debt may also be issued by community improvement districts created by local law and by various state and local authorities and similar entities.
General Obligations. Unless another form of financing is specifically authorized and qualified for, a Local Government can issue only its general obligation (“G.O.”) debt. General obligations or “G.O.’s” are debt, usually but not necessarily taking the form of bonds, made by a Local Government, representing its full faith and credit and backed by its ad valorem taxing power. A general obligation can be issued for any purpose for which ad valorem taxes may be levied. General obligations cannot be issued without the assent of a majority of the qualified voters of the Local Government voting in a referendum held for that purpose. The referendum question will include whether debt shall be incurred by the Local Government in a particular amount and for particular purposes (stated separately unless they constitute one project), the amount of principal to be paid in each year, and the interest rate or maximum interest rate applicable. All debt incurred by a Local Government may never exceed 10% of the assessed value of all taxable property within the Unit. Before incurring G.O. debt, the Local Government must provide for the assessment and collection of an annual tax sufficient to pay the principal and interest within 30 years.
SPLOST Debt. Counties or school systems also may issue general obligation debt, without assessing ad valorem tax, when an appropriate special purpose local option sales tax (SPLOST) referendum is approved including as part of the question:
“If imposition of the tax is approved by the voters, such votes shall also constitute approval of the issuance of general obligation debt … in the principal amount of $______________ for the above purpose.”
When so authorized, SPLOST debt is payable first from SPLOST receipts, although ad valorem taxes would have to be raised if the SPLOST receipts were not actually sufficient to repay the debt. SPLOST debt must be used to pay for SPLOST projects and cannot extend beyond the term of the current SPLOST. The governing board’s resolution calling for the election must set out the specifics for the debt proposed to be issued with the same level of detail discussed above for ordinary general obligations debt. This authorization to incur debt to fund SPLOST projects frequently is not included in SPLOST referendum questions. Apparently this is due to officials’ concerns that voters supporting the SPLOST may not support the referendum for fear of incurring debt. This seems to be a misunderstanding because the debt is to be repaid from the SPLOST receipts that presumably those voters would support and pay otherwise. SPLOST debt frequently can be obtained on very favorable terms due to the twin repayment sources, the SPLOST and the taxing power. SPLOST debt allows SPLOST projects to commence promptly after the authorization of the SPLOST, showing the voters the resulting facilities. Without borrowing, work on the facilities can only commence after complete funding for the project has been collected through taxes, resulting in long delays. SPLOST projects might also be funded in advance by lease-purchase and COPs arrangements, discussed below.
Local Government Revenue Bonds. Local Governments have the ability to issue revenue bonds for a variety of potentially revenue-producing undertakings such as transportation facilities, water and sewer systems, solid waste operations, libraries, sports facilities, exhibition facilities, parking and jails. Revenue bonds do not require voter approval unless issued for gas or electric systems. Revenue bonds represent no call on the full faith and credit and taxing power of the Local Government, but must be payable solely from revenues of undertakings for which bonds can be issued that are pledged for that purpose. Consequently, revenue bonds can only be used when the undertakings will be “self-liquidating,” that is, expected to be fully paid from the revenues pledged. However, a number of like or unlike undertakings can be combined so that the revenues from an established, profitable undertaking can support a new or unprofitable undertaking. Although a Local Government can use its general funds to pay debt service on revenue bonds, general funds may not be pledged or committed for such purpose.
Bond Anticipation Notes. When revenue bonds have been authorized and validated for an undertaking but have not yet been issued, the Revenue Bond Law authorizes counties to borrow through “interim receipts,” commonly known as bond anticipation notes. Bond anticipation notes are used to obtain an advance of funds for the acquisition or construction of an undertaking and are payable from the proceeds of the revenue bonds when issued. Several federal loan programs, for example USDA water and sewerage loan programs, permanently finance revenue-producing systems through loans evidenced by revenue bonds, require that the Local Government complete construction of the system improvements to be financed prior to funding the loan. The Local Government typically obtains such interim financing from a bank construction loan evidenced by a bond anticipation note.
Authority Revenue Bonds and Other Obligations. Most public authorities and some agencies, such as redevelopment agencies, have power to issue revenue bonds or revenue certificates payable solely from the revenues of certain systems or facilities, in a manner similar to Local Governments, as discussed above. The projects that can be undertaken by a particular authority or agency are described in its governing legislation. While many authorities and similar entities may finance only by the issuance of revenue bonds, some have power to borrow on their own general credit, without a referendum. However, authorities often do not possess taxing power or other assured sources of funds and, thus, they can have difficulty in obtaining general credit. Most authorities are empowered to pledge their property as security for their obligations. The legislation governing each authority or agency must be consulted for particulars. For example, local Hospital Authorities can issue debt for a variety of health-related facilities and pledge both their revenues and assets in support.
Contract Revenue Bond Financing. A Local Government and an appropriate authority, together, can avoid the referendum requirement for a G.O. bond and the “self-liquidating” requirement for a Local Government revenue bond, by engaging in an indirect general obligation (referred to as a “Contract Revenue Bond”) financing. The “Intergovernmental Contracts” provision of the Georgia Constitution permits two or more public bodies to contract for terms up to 50 years for the provision of services or the use of facilities which the contracting parties are authorized by law to undertake or provide. Consequently, an authority having power to issue revenue bonds for a facility can enter into a contract to provide the use of the facility to the Local Government, and the Local Government can pledge its full faith and credit to that contract. That contract can be pledged to the payment of the authority’s revenue bonds issued for the facility, which become indirect general obligations of the Local Government. For example, where a city needs to establish a sewage disposal system, but cannot or does not wish to pass a voter referendum to issue general obligation bonds, and the initial revenues of the system would not support the issuance of its revenue bonds, it might finance the system through a Contract Revenue Bond. This would require that there exist or be created an authority with power to issue bonds for the facility. Such an authority might be created for a particular locality, or exist on a statewide basis. The Local Government would contract to use the facility and to pay any deficiency in the debt service.
Tax Anticipation Notes (“TANs”). A Local Government may obtain temporary loans in the form of tax anticipation notes during any calendar year to pay its expenses. TANs must be payable on or before December 31 of the calendar year in which they are used. A Local Government cannot use tax anticipation note borrowings if there is an unpaid TAN obtained in any prior year. The aggregate amount of all TANs outstanding cannot exceed 75% of the total gross income from taxes collected in the preceding year, and a Local Government cannot incur in any calendar year an aggregate of TANs, together with any other contracts or obligations for current expenses, in excess of the total anticipated revenue for such calendar year. Although TANs ordinarily are used to smooth out differences between operating expenditures and revenue collections, TANs are sometimes used to fund a capital project when some kind of permanent funding is expected before the end of the year. Of course, this can only be done when the TANs do not exceed 75% of prior year tax revenues. TAN borrowing in anticipation of permanent funding of a capital project may not be prudent if anything could derail the permanent funding, putting the county in a financial bind at the end of the year. When tax anticipation notes are issued to pay operating expenses, the arbitrage rules on federal tax exemption of interest place limits on the amount and timing of TAN borrowings. The Local Government must estimate its largest cumulative cash flow deficit for its general fund and any other amounts that are available to pay general operating expenses, and can always borrow up to the amount of such deficient plus a reasonable reserve of up to 5% of the prior fiscal year operating expenditures. More restrictive limitations may apply if the Local Government wants to avoid arbitrage rebate responsibilities. These arbitrage rules are discussed in a later section.
Multiyear Lease-Purchase Financing. As an exception to the general rule that leases and other contracts may not extend beyond one year, Local Governments are empowered to enter into multi-year lease, purchase and lease-purchase contracts for property to be acquired. There are a number of conditions imposed upon such a multi-year contract. The contract must state the total obligation due in each calendar year. Although the contract can provide for automatic renewal unless the county takes some positive action, the obligation of the Local Government to make payments must terminate absolutely and without further obligation at the close of each calendar year. If the contract is not renewed, the Local Government will lose the property financed and may be liable for the stated obligations for the last year for which the contract was renewed.
Such lease-purchase or installment sale contracts may be used as financing. The contract will allocate a portion of the Local Government’s payments to principal and a portion to interest. If the payments are made in full, the county will own the asset free and clear. In the typical contract, the property is made available to the Local Government in return for monthly, quarterly, semiannual or annual payments corresponding to principal and interest on financing obtained from third parties. The principal amount of the contract will be the acquisition and/or construction costs of the property and interest will be determined by agreement with the lender and based on market conditions at closing. The term of the contract will be set by the parties, with consideration given to the useful life of the property financed and the repayment sources. A Local Government must make an annual appropriation for payments expected to be due with respect to the contract during its fiscal year. Should the Local Government fail to make an appropriation or should it take affirmative action under the terms of the contract to not renew at the end of the calendar year, called a “nonappropriation,” the property will go to the lender. In addition to the loss of the property, the failure of the Local Government to complete the contract could be expected to prevent it from obtaining similar credit in the future.
A lease-purchase financing must be for the full cost or value of the property subject to the contract, so a Local Government cannot have “equity” in the property. Georgia law prohibits a Local Government from giving away or forfeiting property the Local Government owns or pays for, and this would happen if the Local Government had equity in the property at the outset of a lease-purchase contract and did not renew the contract after the first year. The Local Government may improperly create such equity if it pays for and does not finance a portion of the cost of the property, or where the Local Government includes land that it already owns, in a lease-purchase financing for buildings or improvements. Legal counsel may be able to assist in structuring around these “equity” issues by narrowing the scope of the property made part of the lease-purchase or by reallocating borrowed funds to a different project.
There are several other limitations on lease-purchase financing. Without a court order, property cannot be financed if it has been the subject of a failed referendum within four years. For cities and counties, the total principal amount of lease-purchase financing, when added to outstanding general obligation debt, cannot exceed 10% of the assessed valuation of all taxable property in the county. For boards of education, the combined annual payments for all such contracts (excluding energy savings contracts) cannot exceed 7.5% of the total local revenue collected for maintenance and operations for the last fiscal year. For city and county real estate financing additional limitations apply. A public hearing must be held prior to entering into a real estate contract. The average annual payments of real estate financings cannot exceed 7½ % of the governmental fund revenues of the county for the calendar year preceding the closing (plus any SPLOST receipts dedicated to such purpose). Further, unless that real property was approved in the last SPLOST referendum, it may not be the subject of lease-purchase financing if it would push the total outstanding principal amount of such financings over $25,000,000.
Lease-purchase financing frequently is used to finance projects to be paid for by a special purpose local option sales tax, particularly if the SPLOST referendum did not include a debt authorization as discussed above. A SPLOST project cannot be commenced until actual funding is obtained, and the gradual accumulation of sales tax may result in a prolonged delay before the voted-for project is actually available. However, if a lease-purchase is used to finance the project after the approval of the SPLOST referendum, the project can be undertaken immediately and the sales tax receipts can be used to make the payments. Lenders look favorably upon such arrangements because the SPLOST receipts cannot be diverted to non-SPLOST projects.
Certificates of Participation. Certificates of Participation (“COPs”) actually are a variety of lease-purchase contract, discussed above, and are subject to all of the same rules, and then some. Typically, to accomplish a COPs transaction a trustee issues securities that represent percentage interests in the right to receive payments from the county under the lease-purchase contract. The Local Government will need an underwriter to sell the COPs in the bond market, and will use similar documentation to that applicable to a bond issue. Like many bond issues, the COPs may be insured and the Local Government may be required to take on continuing information disclosure obligations. Although there may be more costs and complexity with COPs, the interest rates and term may be more favorable than a privately placed lease-purchase. For a more detailed explanation, request our “Overview of Lease-Purchase Financing and COPs.”
Qualified Zone Academy Bonds (“QZABs”). A QZAB is a type of bond authorized by federal law that pays a federal income tax credit instead of interest. Thus, it is a federal government subsidy for public schools that use QZABs to finance facilities. The QZAB program is designed to encourage the formation of partnerships between public schools and local businesses, and the program allows financing to schools serving larger concentrations of low-income families for the purpose of increasing graduation rates and encouraging job training. Georgia, as each other state, receives an allocation setting the total amount of QZABs that may be issued in a particular funding round. Allocations are made by the Georgia Department of Education among the qualifying school systems. A school must be a “qualified zone academy” to qualify, meaning that it is a public school that expects to have at least 35% of its students eligible for free or reduced-cost lunches under the federal program (or it may be located in a federal enterprise zone). A qualified zone academy must have written commitments from private enterprises to make qualified contributions, including such items as equipment, technical assistance, services as mentors, internships, field trips and other property or services, with a present value of not less than 10% of the QZABs to be issued. At least 95% of the proceeds of QZABs must be used for rehabilitating school facilities, providing equipment, developing course materials or training personnel. Although QZABs do not pay interest and are established under a federal program, they constitute obligations of the issuer and generally must be authorized by referendum as general obligation bonds of the Board of Education and the principal repaid by tax assessment. However, if an appropriate authority undertakes the qualifying project, it may issue the QZABs as revenue bonds under certain circumstances.
Tax Allocation Bonds (“TABs”). Cities and counties may issue tax allocation bonds repayable principally from increments of ad valorem taxes above a baseline value established in a tax allocation district. This method is available only in the cities and counties that have adopted the Redevelopment Powers Law by virtue of a local act of the General Assembly and a voter referendum approving that local law. Tax allocation bonds typically are used to finance public infrastructure undertaken to spur private developments. This allows TABs to be issued to finance a portion of redevelopment costs or infrastructural or other items repayable from future taxes on the properties that will benefit from the improvements.
Validation. General obligation bonds, SPLOST bonds, QZABs, TABs and revenue bonds, but not TANS, COPs and lease-purchases, must be validated through a superior court proceeding prior to their issuance. The validation procedure takes approximately three weeks, and establishes that the bonds and their security are valid and incontestable.
Federal Requirements for Tax Exemption
“Private Activity Bond” Tests. In order for governmental obligations to be and remain tax-exempt they must not constitute “private activity bonds.” “Private activity bonds” include financings that meet the private business test or the private loan financing test. Although some private activity bonds qualify as tax-exempt, there are severe restrictions and such bonds are subject to the alternative minimum tax. Private activity bonds are outside of the scope of this memorandum. For further information, we have available an “Overview of Private Activity Bond Financing and Incentives.”
- Private Business Test. Obligations meet the private business test if more than 10% of the proceeds are to be used directly or indirectly in private business use, and if more than 10% of the proceeds (or property financed) are directly or indirectly secured by or to be derived from property put to a private business use (or payments with respect to such property). Private business use means generally use by private persons or entities other than as members of the general public or the federal government. For example, if more than 10% of a facility is to be used by private businesses (e.g., a parking deck with reserved spaces, hospital space for the conduct of private medical practices, or a utility facility where a portion of the output is contracted for), and payments for such use will be available to pay the bonds, the otherwise “governmental” obligations issued for the facility would become “private activity” bonds. Even more restrictive rules are applied to power generation facilities and where a private use is financed as a portion of a larger unrelated issue. Any private business issues should be analyzed by Bond Counsel.
- Management Contract Safe Harbors. Part or all of facilities to be financed by a Local Government are sometimes managed or operated by for-profit companies. “Safe harbor” guidelines can be used to assure that such arrangements do not impair the tax exemption of obligations issued for such facilities. Briefly, the guidelines require that the manager’s or operator’s compensation be determined by a periodic fixed fee, a capitation fee (an amount per person, regardless of services rendered), a per-unit-of-services fee, or a percentage of gross revenues or expenses, but in no case by a percentage of net revenues or profits. The permitted length of a contract (including all binding renewal options) is limited depending on the type of compensation; the more fixed compensation, the longer a contract may extend. If compensation is based on at least 95% fixed fees, contracts may be for a term up to 15-years; if at least 80% fixed fees, 10-years; if 50% fixed fees or 100% capitation fees (or a combination), 5-years (if the contract is cancellable by the Local Government within 3 years); if per-unit fees, 3-years (if the contract is cancellable by the Local Government within 2 years). A special rule applies to new facilities during a start-up period or to facilities primarily providing services to third parties: compensation can be based entirely on a percentage of fees charged, or a combination of per-unit-of-services fees and a fixed fee (or during the start-up period, a percentage of gross revenues, adjusted gross revenues or expenses), if the contract has a term of 2-years or less (cancellable by the Local Government within 1 year).
- Private Loan Test. The private loan financing test is met if the lesser of 5% of bond proceeds or $5,000,000 is used directly or indirectly to make or finance loans to persons other than governmental units. An indirect loan may be found, for example, if borrowings are used to finance facilities to be used by less than the general public and paid for by user fees.
Registration Requirement. With very limited exceptions, tax-exempt instruments must be in registered form. Provision must be made for the registration of the recipient of the tax-exempt interest on a register maintained by or on behalf of the Local Government, and assignments must be registered.
Federal Guaranty Prohibition. Governmental obligations are not entitled to tax exemption if the payment of principal or interest is directly or indirectly guaranteed in whole or in part by the United States or any of its agencies or instrumentalities. Obligations will be treated as guaranteed by the federal government if 5% or more of the proceeds are used to make loans guaranteed by the federal government or to invest in federally insured deposits or accounts. Financing to be paid with federal funds might also be treated as guaranteed. Exceptions are made to permit bond proceeds to be invested in United States Treasury obligations and to permit investments of bona fide debt service funds, reasonably required reserve funds, and funds to hold bond proceeds prior to their initial use.
Information Reporting. An information report on Form 8038-G must be filed with the Internal Revenue Service not later than the 15th day of the second calendar month after the close of the calendar quarter in which any tax-exempt governmental obligations are issued. Form 8038 GC should be utilized to consolidate issues with an issue price of less than $100,000 each, and must be filed annually by the February 15th following the calendar year of the issues.
Arbitrage Restrictions. Governmental obligations are not entitled to tax exemption if they are deemed “arbitrage bonds.” Arbitrage rules are exceedingly complex, and only a brief sketch is provided below. Obligations are arbitrage bonds if more than 5% or $100,000 of the proceeds are reasonably expected to be used, or to replace funds used, directly or indirectly to acquire higher yielding investments. This concept of “investments” is broad, including virtually any contract or property to which a rate of return can be ascribed. Although governmental bond proceeds can be invested in other tax-exempt governmental bonds, they cannot be invested in higher yielding private activity bonds subject to alternative minimum tax. Exceptions are made for investment of bond proceeds during certain temporary periods, including the temporary investment of monies in a bona fide debt service fund and in a fund for bond proceeds awaiting use. The temporary period for investment of proceeds pending use in the acquisition or construction of property is three years. Tax anticipation note proceeds may be invested without limitation if the TANS are outstanding for a period of 13 months or less, and are issued in an amount not exceeding the maximum anticipated cumulative cash flow deficit to be financed, plus a reasonable reserve, less investment earnings from the TANS. The cumulative cash flow deficit is the largest deficit of estimated monthly expenditures over amounts available to pay expenditures. Special rules apply to determine what funds are considered available to pay expenses. Amounts in a reasonably required reserve or replacement fund are not subject to investment yield restrictions, provided that the reserve or replacement fund cannot generally exceed 10% of the proceeds of the issue, 125% of average annual debt service or 100% of maximum annual debt service.
Arbitrage Rebate. Even though obligations may comply with the arbitrage rules referred to above, any arbitrage earnings in excess of the yield on the obligations must be rebated periodically to the federal government. The rebate rules require that periodic computations and filings be made. However, there are limited “2-year,” “18-month” “6 month” and “Small Issuer” exemptions from the rebate requirement.
2-Year Exemption. The 2-year exemption can apply where at least 75% of the “net proceeds” of the obligations are to be used for construction, reconstruction or rehabilitation of real property. The rebate requirement does not apply if the net proceeds are expended in accordance with the following minimum requirements: 10% within six months; 45% within one year; 75% within 18 months; and 100% within two years (except that the two-year period may be extended to three years if the requirement would have been met within two years but for a reasonable retainage not exceeding 5% required to ensure compliance with terms of a construction contract). “Net proceeds” includes the proceeds of the financing (except for amounts placed in a reasonably required reserve fund) plus investment proceeds earned before the close of the period. If, however, the Local Government elects on the closing date, net proceeds excludes interest earnings on any reasonably required reserve fund, but interest earnings on such fund will be subject to the rebate requirement from the closing date, rather than from the end of the two-year expenditure period. If the Local Government elects on or before the closing date to pay a penalty in lieu of payment of the rebate amount, the rebate requirement is deemed to be satisfied if the Local Government pays a penalty with respect to the close of each six-month period after the closing date equal to 1.5% of the amount of the net proceeds of the financing, which as of the close of such period are not spent as required.
18-Month Exemption. An exemption from the rebate requirement applies if all gross proceeds (except for proceeds placed in a reasonably required reserve fund) are expended in accordance with the following schedule: At least 15% within 6 months; at least 60% within 12 months; and 100% within 18 months (with an exception for reasonable retainage spent within 30 months).
Six-Month Exemption. An exemption from the rebate requirement applies if all gross proceeds (except for proceeds placed in a reasonably required reserve fund) are expended within six months. If TANs are issued, the cumulative cash flow deficit financed must reach at least 90% of the TAN proceeds within 6 months.
Small Issuer Exemption. An exemption from the rebate requirement applies if (1) the obligation is issued by a Local Government with general taxing powers, (2) only local government public activities are being financed, and (3) the total of tax-exempt governmental and 501(c)(3) obligations (other than some refunding obligations) to be issued in that calendar year by or on behalf of that Local Government and its subordinate units is not reasonably expected to exceed $5,000,000 ($15,000,000 in the case of public school financings). A Local Government with taxing powers can allocate a portion of the limitation to a subordinate unit in some cases.
Limitation of Exemptions. Compliance with the 2-year, 18-month or 6-month exemptions does not relieve the Local Government from rebating arbitrage from investment of a reasonably required reserve fund or arbitrage, on a bona fide debt service fund containing in excess of $100,000. Compliance with the spending guidelines of the 2-year, 18-month and 6-month exceptions includes spending of interest earnings as well as the borrowed amounts.
A Local Government that reasonably anticipates issuing not more than $10,000,000 of governmental obligations during any calendar year may designate its obligations as “Qualified Tax-Exempt Obligations”. Generally, a bank or other financial institution holding a tax-exempt governmental obligation is not entitled to a deduction for its related carrying costs. The institution’s carrying cost is considered that portion of the cost of the obligation determined by the ratio of the institution’s borrowed funds to its equity. Consequently, banks and other financial institutions find it unattractive to hold most tax-exempt obligations. Qualified Tax-Exempt Obligations are subject to only a 20% disallowance of the allocable carrying cost, and are attractive for banks and other financial institutions to hold. For the purpose of determining compliance with the $10,000,000 limitation, obligations of the issuer and all of its subordinate entities must be aggregated together with obligations of all superior entities issued on behalf of the issuer.
Tax-exempt governmental obligations may be refinanced or “refunded” by the issuance of tax-exempt refunding bonds. An unlimited number of “current” refundings may occur, in which the prior obligations are retired within 90 days of the issuance of the refunding bonds. However, governmental bonds originally issued after December 31, 1985 may be “advance” refunded (refunding occurs more than 90 days before the original bonds will be retired) only once, and the originally issued bonds must be retired on their first call date. Because bonds are commonly issued as non-callable for a fixed period, the only refinancing possible frequently is an advance refunding. Special arbitrage rules apply to refundings. When bonds are refunded, the liens and covenants securing them normally are “defeased,” and the property or revenues can be pledged to the refunding bonds.
Counsel experienced in municipal financing law should be retained to serve as Bond Counsel. The function of Bond Counsel is to structure and document the transaction and to issue an opinion on the validity and tax status of the financing. Fees of Bond Counsel are payable by the Local Government from Bond proceeds. Smith, Gambrell & Russell, LLP is a “Red Book” listed Bond Counsel firm.
This memorandum provides an overview of tax-exempt governmental financing, from both a Georgia law and federal tax prospective. This brief treatment can do no more than touch upon some of the more important issues. Many details have been omitted, and additional information is available from the writer.