Internal Revenue Bulletin:  2009-17 

April 27, 2009 

Notice 2009-35

Qualified School Construction Bond Allocations for 2009


SECTION 1. PURPOSE

This notice sets forth the maximum face amount of qualified school construction bonds (“QSCBs”) allocated by the Department of the Treasury (Treasury) to each State and large local educational agency for 2009 under § 54F(d) of the Internal Revenue Code (Code). For this purpose, § 54A(e)(3) provides that the term “State” includes the District of Columbia and any possession of the United States. This notice also provides interim guidance for QSCBs.

SECTION 2. BACKGROUND

.01 INTRODUCTION

Section 1521(a) of Title I of Division B of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009) (“Act”) added new § 54F to the Code, setting forth program provisions for QSCBs. The Act amended § 54A(d)(1) to provide that the term “qualified tax credit bond” means, in part, a qualified school construction bond that is part of an issue that meets the requirements of §§ 54A(d)(2), (3), (4), (5), and (6) regarding expenditures of bond proceeds, information reporting, arbitrage, maturity limitations, and prohibitions against financial conflicts of interest, respectively. The Act also amended § 54A(d)(2) to provide that, for purposes of § 54A(d)(2)(C), the term “qualified purpose” for a QSCB means a purpose specified in § 54F(a)(1) described below.

The Act added § 54F(c) to provide a national bond limitation authorization for QSCBs of $11 billion for 2009 and $11 billion for 2010 (each, a “calendar year volume cap” and together “volume cap”). Section 54F(c)(3) provides that except for carryforwards provided for in § 54F(e), there is no calendar year volume cap for calendar years after 2010.

.02 QUALIFIED SCHOOL CONSTRUCTION BONDS UNDER § 54F

Section 54F(a) defines a “qualified school construction bond” to mean any bond issued as part of an issue if —

(1) 100 percent of the available project proceeds of such issue are to be used for the construction, rehabilitation, or repair of a public school facility or for the acquisition of land on which such a facility is to be constructed with part of the proceeds of such issue,

(2) the bond is issued by a State or local government within the jurisdiction of which such school is located, and

(3) the issuer designates such bond for purposes of this section.

Section 54F(b) provides that the maximum aggregate face amount of bonds issued during any calendar year that may be designated under § 54F(a) by any issuer shall not exceed the portion of the calendar year volume cap allocated to such issuer for the calendar year under § 54F(d).

Section 54F(d)1) provides that, except as provided in § 54F(d)(2)(C), the calendar year volume cap shall be allocated by the Treasury among the States in proportion to the respective amounts each State is eligible to receive under § 1124 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6333) (the “Education Act”) for the most recent fiscal year ending before the calendar year. Section 54F(d)(1) further provides that the calendar year volume cap amount allocated to each State is to be further allocated by the State to the issuers within the State.

Section 54F(d)(2)(A) provides that 40 percent of the calendar year volume cap for any calendar year is to be allocated under § 54F(d)(2)(B) by the Treasury among local educational agencies that are large local agencies for the calendar year. Section 54F(d)(2)(B) provides that 40 percent of the calendar year volume cap is to be allocated among large local educational agencies in proportion to the respective amounts each such agency received under § 1124 of the Education Act for the most recent fiscal year ending before the calendar year.

Section 54F(d)(2)(C) provides that the allocation of calendar year volume cap to any State under § 54F(d)(1) is reduced by the aggregate amount of allocations under § 54F(d)(2) to large local educational agencies within the State.

Section 54F(d)(2)(D) provides the amount of calendar year volume cap allocated to a large local educational agency for any calendar year may be reallocated by such agency to the State in which such agency is located for the calendar year. Section 54F(d)(2)(D) further provides that any amount reallocated to a State by a large local educational agency may be further allocated by the State to issuers within the State.

Section 54F(d)(2)(E) defines a large local educational agency as any local educational agency if such agency is: (1) among the one hundred local educational agencies with the largest number of children aged 5 through 17 from families living below the poverty level, as determined by the Treasury using the most recent data available from the Department of Commerce that are satisfactory to the Treasury; or (2) one of not more than twenty-five additional local educational agencies that the Secretary of Education determines (based on the most recent data available satisfactory to the Treasury) are in particular need of assistance, based on a low level of resources for school construction, a high level of enrollment growth, or such other factors as the Treasury deems appropriate.

Section 54F(d)(3) provides that the amount allocated under § 54F(d)(1) to any United States possession other than Puerto Rico is an amount that would have been allocated to such possession if all allocations under § 54F(d)(1) were made on the basis of respective populations of individuals below the poverty line (as defined by the Office of Management and Budget). Section 54F(d)(3) further provides that in making the other allocations, the amount to be allocated under § 54F(d)(1) to the States is reduced by the aggregate amount allocated under § 54F(d)(3) to the United States possessions.

Section 54F(d)(4) provides for additional calendar year volume cap amounts of $200 million for calendar year 2009 and $200 million for calendar year 2010 (each an “Indian tribal government calendar year volume cap” and together the “Indian tribal government volume cap”) to be allocated by the Secretary of Interior for purposes of the construction, rehabilitation, and repair of schools funded by the Bureau of Indian Affairs. This $ 200 million Indian tribal government calendar year volume cap allocated to the Indian tribal governments does not reduce the $11 billion calendar year volume cap allocated to the States and the large local educational agencies. Section 54F(d)(4) further provides that, for amounts of Indian tribal government volume cap allocated, Indian tribal governments (as defined in § 7701(a)(40)) are to be treated as qualified issuers.

Section 54F(e) provides that if for any calendar year, the amount of calendar year volume cap allocated under § 54(d) to any State or the amount of Indian tribal government calendar year volume cap allocated to an Indian tribal government exceeds the amount of QSCBs issued during the calendar year pursuant to such allocation, the amount of such excess shall to be carried over to the following calendar year and shall increase the calendar year volume cap or the Indian tribal government calendar year volume cap allocation for the following calendar year for the State or Indian tribal government.

SECTION 3. INTERIM GUIDANCE AND RELIANCE

.01 GENERALLY

Pending the promulgation and effective date of future administrative or regulatory guidance, taxpayers may rely on the interim guidance provided in this notice.

.02 CREDIT RATE

For QSCBs issued under §§ 54A and 54F, the maximum maturity and the credit rate are determined as of the date that there is a binding, written contract for the sale or exchange of the bond. The applicable maximum maturity, the discount rate for determining the maturity, and QSCB credit rate are published for that date by the Bureau of Public Debt on its Internet site for State and Local Government Series securities at: https://www.treasurydirect.gov. For further information regarding the methodology and procedures that the Treasury uses to determine these credit rates, see Notice 2009-15, 2009-6 I.R.B. 449 (February 9, 2009).

.03 SINKING FUND YIELD

Section 54A(d)(4)(C) provides that an issue shall not be treated as failing to meet the requirements of § 148 by reason of any fund that is expected to be used to repay the issue if: (i) the fund is funded at a rate not more rapid than equal annual installments; (ii) the fund is funded in a manner reasonably expected to result in an amount not greater than an amount necessary to repay the issue; and (iii) the yield on such fund is not greater than the discount rate determined under § 54A(d)(5)(B) (the “permitted sinking fund yield”).

The permitted sinking fund yield is determined under § 54A(d)(5)(B) by using a rate equal to 110 percent of the long-term adjusted federal rate (“AFR”), compounded semiannually, for the month in which the bond is sold. The IRS publishes the long-term adjusted AFR, compounded semiannually, each month in a revenue ruling published in the Internal Revenue Bulletin. The Bureau of Public Debt publishes the permitted sinking fund yield for each month on its Internet site for State and Local Government Series securities at: https://www.treasurydirect.gov.

.04 INFORMATION REPORTING

Section 54A(d)(3) requires issuers of QSCBs to submit information reporting returns to the IRS similar to those required to be submitted under § 149(e) for tax-exempt State or local governmental bonds. These information reporting returns are required to be submitted at the same time and in the same manner as those under § 149(e) on such forms as shall be prescribed by the IRS for such purpose. Pending further guidance from the IRS regarding the applicable forms to be used for such information reporting for QSCBs, in the case of an issue of QSCBs, the issuer must submit to the IRS an information return on Form 8038, at the same time and in the same manner as required under § 149(e), with modifications as described below. Issuers of QSCBs should complete Part II of Form 8038 by checking Line 20c (Other), writing “QSCBs” in the space provided for the bond description, and entering the issue price of the QSCBs in the Issue Price column on Line 20c. For purposes of this notice, the term “issue” has the meaning used for tax-exempt bond purposes in § 1.150-1(c) of the Income Tax Regulations.

.05 CERTAIN ELIGIBLE EXPENDITURES FOR EQUIPMENT

For purposes of the § 54F(a)(1) requirement that all available proceeds of QSCBs be spent on construction, rehabilitation, or repair of a public school facility or for the acquisition of land on which such a facility is to be constructed with part of the proceeds of such issue, eligible expenditures include, among other things, expenditures for costs of acquisition of equipment to be used in such portion or portions of the public school facility that is being constructed, rehabilitated, or repaired with the proceeds of QSCBs.

.06 ELIGIBLE ISSUERS

Eligible issuers of QSCBs include States, political subdivisions as defined for purposes of § 103, large local educational agencies that are State or local governmental entities, and entities empowered to issue bonds on behalf of any such entity under rules similar to those for determining whether a bond issued on behalf of a State or political subdivision constitutes an obligation of that State or political subdivision for purposes of § 103 and § 1.103-1(b), Income Tax Regs. Further, eligible issuers include otherwise-eligible issuers in conduit financing issues (as defined in § 1.150-1(b), Income Tax Regs.) An eligible issuer may issue QSCBs based on a volume cap allocation received by the eligible issuer itself or by a conduit borrower or other ultimate beneficiary of the issue of QSCBs. In all events, the eligible costs of public school facilities financed with the proceeds of an issue of QSCBs under § 54F(a)(1) must relate to public school facilities that are located within both the jurisdiction of the issuer of the QSCBs and the jurisdiction of the authorized entity that allocates volume cap to the issue of QSCBs for the financing of those public school facilities. Authorized entities that may allocate volume cap consist of those entities that receive volume cap allocations under § 54F(d). Thus, for example, a large local educational agency that has received a volume cap allocation under § 54F(d)(2) either may issue QSCBs with respect to that volume cap itself or it may be a beneficiary of proceeds of an issue issued by another eligible issuer with respect to that volume cap, provided that, in either event, the public school facilities to be financed with the proceeds of the issue of QSCBs are located within both the jurisdiction of the issuer of the QSCBs and the jurisdiction of the large local educational agency that allocated volume cap to the issue of QSCBs for the financing of those public school facilities.

SECTION 4. 2009 ALLOCATIONS OF NATIONAL BOND VOLUME CAP FOR QSCBs

The 2009 national bond volume cap for QSCBs is $11 billion. This amount is allocated among the States and large local educational agencies as set forth in this notice. The 2009 allocations to 100 large local educational agencies reflects the determination by the Secretary of Education to decline to select 25 additional large local educational agencies under § 54F(d)(2)(E)(ii) for such year. The first chart below allocates $6.6 billion of the $11 billion 2009 calendar year volume cap for QSCBs to States to be further allocated to the issuers within such State. The second chart below allocates $4.4 billion of the $11 billion 2009 calendar year volume cap for QSCBs to large local educational agencies.

2009 Allocations to States of Volume Cap for Qualified School Construction Bonds (Net of Allocations to Large Local Educational Agencies)
State/Territory Total Allocation by State/ Territory
Alabama 118,776,000
Alaska 29,784,000
Arizona 186,292,000
Arkansas 113,443,000
California 773,525,000
Colorado 87,147,000
Connecticut 105,092,000
Delaware 29,784,000
District of Columbia 0
Florida 106,806,000
Georgia 201,062,000
Hawaii 0
Idaho 37,665,000
Illinois 244,435,000
Indiana 177,861,000
Iowa 64,252,000
Kansas 79,589,000
Kentucky 135,132,000
Louisiana 131,622,000
Maine 42,074,000
Maryland 50,354,000
Massachusetts 144,783,000
Michigan 296,860,000
Minnesota 75,850,000
Mississippi 132,443,000
Missouri 141,441,000
Montana 31,623,000
Nebraska 32,343,000
Nevada 6,767,000
New Hampshire 29,784,000
New Jersey 223,279,000
New Mexico 64,602,000
New York 192,049,000
North Carolina 187,167,000
North Dakota 25,740,000
Ohio 267,112,000
Oklahoma 87,018,000
Oregon 112,886,000
Pennsylvania 315,737,000
Rhode Island 22,062,000
South Carolina 131,364,000
South Dakota 29,784,000
Tennessee 121,738,000
Texas 538,585,000
Utah 50,962,000
Vermont 24,845,000
Virginia 191,077,000
Washington 164,111,000
West Virginia 78,219,000
Wisconsin 98,589,000
Wyoming 24,080,000
   
American Samoa 10,748,000
Guam 10,980,000
Northern Marianas 10,703,000
Puerto Rico 0
Virgin Islands 9,974,000
   
Total 6,600,000,000
2009 Allocations to Large Local Educational Agencies of Volume Cap for Qualified School Construction Bonds
State Large Local Educational Agency Allocation
Alabama Birmingham City School District 15,683,000
Alabama Mobile County School District 23,135,000
Alabama Montgomery County School District 11,421,000
Arizona Mesa Unified District 16,111,000
Arizona Tucson Unified District 21,375,000
California Bakersfield City Elementary 15,720,000
California Compton Unified 18,559,000
California Fresno Unified 41,398,000
California Long Beach Unified 37,905,000
California Los Angeles Unified 318,816,000
California Oakland Unified 26,326,000
California Sacramento City Unified 21,251,000
California San Bernardino City Unified 27,790,000
California San Diego City Unified 38,877,000
California Santa Ana Unified 19,269,000
California Stockton City Unified 16,055,000
Colorado Denver County 1 24,022,000
District of Columbia District of Columbia Public Schools 33,936,000
Florida Broward County School District 49,913,000
Florida Dade County School District 104,855,000
Florida Duval County School District 27,220,000
Florida Hillsborough County School District 40,633,000
Florida Lee County School District 12,701,000
Florida Orange County School District 35,824,000
Florida Palm Beach County School District 33,643,000
Florida Pasco County School District 11,028,000
Florida Pinellas County School District 24,352,000
Florida Polk County School District 20,543,000
Florida Volusia County School District 11,941,000
Georgia Atlanta City School District 37,934,000
Georgia Clayton County School District 13,793,000
Georgia Cobb County School District 12,732,000
Georgia De Kalb County School District 27,832,000
Georgia Fulton County School District 17,720,000
Georgia Gwinnett County School District 18,985,000
Georgia Richmond County School District 16,163,000
Hawaii Hawaii 32,058,000
Illinois City of Chicago School District 299 254,250,000
Indiana Indianapolis Public Schools 31,181,000
Kentucky Jefferson County School District 27,483,000
Louisiana Caddo Parish School Board 17,359,000
Louisiana East Baton Rouge Parish School Board 21,433,000
Louisiana Jefferson Parish School Board 21,646,000
Louisiana Orleans Parish School Board 39,607,000
Maryland Baltimore City Public School System 58,096,000
Maryland Baltimore County Public Schools 19,424,000
Maryland Prince George’s County Public Schools 25,102,000
Massachusetts Boston 37,567,000
Massachusetts Springfield 17,864,000
Michigan Detroit City School District 123,272,000
Minnesota Minneapolis 21,739,000
Minnesota St. Paul 16,119,000
Mississippi Jackson Public School District 15,255,000
Missouri Kansas City School District 17,880,000
Missouri St Louis City 28,163,000
Nebraska Omaha Public Schools 17,378,000
Nevada Clark County School District 51,414,000
New Jersey Newark City 27,258,000
New Mexico Albuquerque Public Schools 21,968,000
New York Buffalo City School District 34,374,000
New York New York City 699,872,000
New York Rochester City School District 29,535,000
North Carolina Charlotte-Mecklenburg Schools 25,962,000
North Carolina Cumberland County Schools 15,948,000
North Carolina Forsyth County Schools 12,244,000
North Carolina Guilford County Schools 17,147,000
North Carolina Wake County Schools 17,304,000
Ohio Akron City School District 15,062,000
Ohio Cincinnati City School District 25,632,000
Ohio Cleveland Municipal School District 53,145,000
Ohio Columbus City School District 36,372,000
Ohio Toledo City School District 21,460,000
Oklahoma Oklahoma City 17,844,000
Oklahoma Tulsa 14,327,000
Pennsylvania Philadelphia City School District 146,897,000
Puerto Rico Puerto Rico 376,055,000
Rhode Island Providence School District 22,338,000
South Carolina Charleston County School District 13,517,000
South Carolina Greenville County School District 15,060,000
Tennessee Memphis City School District 41,736,000
Tennessee Nashville-Davidson County School District 21,132,000
Texas Aldine Independent School District 18,810,000
Texas Alief Independent School District 16,297,000
Texas Arlington Independent School District 12,805,000
Texas Austin Independent School District 24,440,000
Texas Brownsville Independent School District 25,612,000
Texas Dallas Independent School District 73,741,000
Texas Edinburg Consolidated Independent School District 13,810,000
Texas El Paso Independent School District 29,067,000
Texas Fort Worth Independent School District 31,602,000
Texas Garland Independent School District 10,186,000
Texas Houston Independent School District 94,303,000
Texas La Joya Independent School District 13,392,000
Texas Laredo Independent School District 13,639,000
Texas Northside Independent School District 13,299,000
Texas Pasadena Independent School District 14,445,000
Texas Pharr-San Juan-Alamo Independent School District 13,302,000
Texas San Antonio Independent School District 30,385,000
Texas Ysleta Independent School District 16,807,000
Wisconsin Milwaukee 72,118,000
     
Total 4,400,000,000

SECTION 5. EFFECTIVE DATE OF 2009 ALLOCATIONS OF NATIONAL BOND VOLUME CAP

The allocations of the national bond volume cap for QSCBs in Section 4 are effective for QSCBs issued, pursuant to an allocation of 2009 calendar year volume cap, after February 17, 2009, and before January 1, 2010.

SECTION 6. ALLOCATION OF THE INDIAN TRIBAL GOVERNMENT VOLUME CAP

The Department of the Interior is exclusively responsible for making the allocations of the Indian tribal government volume cap and inquiries about the process and timing for those allocations of Indian tribal government volume cap should be directed to John Rever, Director, Office of Management Support Services, Bureau of Indian Affairs, at (703) 390-6314 or John.rever@bia.gov.

SECTION 7. DRAFTING INFORMATION

The principal author of this notice is Aviva M. Roth of the Office of Associate Chief Counsel (Financial Institutions & Products). For further information regarding this notice, contact Aviva M. Roth at (202) 622-3980 (not a toll-free call.)


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