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Public Finance Matters

Updates on recent public finance and municipal bond developments

Can Alphabet Soup Fix Puerto Rico’s Debt Service Issues?

Posted in Workouts


Last week, the Working Group for the Fiscal and Economic Recovery of Puerto Rico gave the broadest hint yet of the next tactic in Puerto Rico’s ongoing quest to deleverage itself.  Although the details have not yet been articulated, Puerto Rico apparently proposes to blend into a single pot several types of distinct taxes currently earmarked to pay or support different types of bonds issued by a number of its legally separate municipal bond issuers, with the hope that the resulting concoction will meet the tastes of a sufficient number of its differing bond creditors to induce them to voluntarily exchange their various types of bonds for a single type of new debt presumably supported by the new blended tax revenue stream.

According to the “Restructuring Process and Principles” slides released by the Working Group on September 24, “the Working Group is working with the Commonwealth’s advisors to structure a debt-relief transaction that will permit the Commonwealth’s available surplus to be used to make payments on its indebtedness while the initiatives and reforms undertaken as part of the Fiscal and Economic Growth Plan take hold.”  Per the release, “[t]he consensual negotiation and ultimate transaction will seek to involve not just creditors of one governmental entity, but instead the creditors of many entities, as part of a single, comprehensive exchange transaction. The  goal of this approach is to avoid a piecemeal strategy that may result in uncoordinated and inconsistent agreements with creditors, litigation among creditor groups, and a lower chance of success.”

As the saying goes, good luck with that.

The Working Group’s trial balloon is short on details as to which existing debt would be involved in the contemplated “single, comprehensive exchange transaction.”  Given the magnitude of the Working Group’s projected funding gap,  after other proposed corrective measures are undertaken, of $14 billion from FY 2016 to FY 2020, and given that direct and guaranteed general obligation bonds and COFINA sales tax bonds  constitute approximately $34 billion out of Puerto Rico’s approximately $71 billion in outstanding public sector bonds, it seems virtually certain that, at a minimum, the contemplated “super-exchange” would involve the g.o. bonds and the COFINA bonds.  Other types of bonds supported, directly or on a contingent basis, by Commonwealth tax revenues are of substantially lesser magnitude and, in many instances, also are payable from independent revenue streams. Some or, depending on the Working Group’s appetite for complexity, all of those other types of bonds also are likely to be targeted for the to-be-negotiated “super-exchange”; as listed in the Working Group‘s September 9 report, they include bonds issued by HTA, GDB, PBA, PFC, PRIFA, UPR, PRCCDA, PRIDCO, GSA and ERS.

In evaluating the feasibility of a negotiated exchange that stirs together this alphabet soup of issuers and creditors, we start from the following premises:

  •  Debt service on the g.o. debt has top priority, under the Puerto Rico constitution,  on the Commonwealth’s “available resources.”  Although enforcement of this legal priority would raise some thorny issues, and although much of the g.o. debt may now be held by holders with a basis well below par, there is no clear incentive for many g.o. bondholders to give up  any portion of their legal entitlement to full debt service payment from “available resources” for what the Working Group’s slides characterize as reduced payment from the Commonwealth’s “available surplus.”
  • Debt service on COFINA bonds is payable from a statutorily assigned portion of the sales tax or of any substitute tax such as the VAT.   The statutorily assigned taxes should be sufficient to pay full debt service on the COFINA bonds for the foreseeable future.  Puerto Rico case law as well as a series of Puerto Rico Attorney General opinions support the validity of such an assignment.  Much of the outstanding g.o. debt has been issued and/or purchased with full awareness by the g.o. bondholders that the relevant portion of the sales tax has been assigned to COFINA and its bondholders.  Similar assignments of specified tax revenues to independent bond-issuing authorities have been upheld in other jurisdictions.  The complaint allegedly ready on someone’s shelf seeking an adjudication that the COFINA structure is a legal sham or that the assigned sales tax revenues remain “available resources” for the payment of g.o. debt service may be filed some day, but from our perspective COFINA holders should like their chances in any such litigation.  Absent disproportionate fear of an adverse result in any such litigation, there is no clear incentive for many COFINA bondholders to give up  any portion of their legal entitlement to full debt service payment from the statutorily assigned and pledged sales tax revenues for reduced payment from any other source.
  • What, if anything, could be achieved by Puerto Rico in consensual debt reduction negotiations with holders of other types of debt with more tenuous claims on Commonwealth taxes (due to express clawback provisions, appropriation requirements, lack of a constitutional payment priority or security interest or other factors) is an interesting question, but may be moot in the event of substantial nonparticipation in a “super-exchange” by g.o. and COFINA bondholders, as Puerto Rico cannot achieve the debt service reductions it asserts it needs without substantial buy-in from the g.o. and/or COFINA bondholders.
  • Although the “Restructuring Process and Principles” slides state that “[t]he transaction will be structured to take into account the priorities of the debt that creditors hold”, it is difficult to derive much meaning from that statement.  Any restructuring that reduces debt service payable on the g.o. bonds in order to pay other Commonwealth expenses will disregard the constitutional priority of debt service in application of available resources.  Any restructuring that reduces debt service payable on COFINA bonds in order to apply some of the sales tax/VAT pledged as security to COFINA bonds to instead pay Commonwealth expenses will violate the statutory priority of COFINA bond debt service.  To the extent that the restructuring would be consensual, it may be tautological that there will be no dishonoring of any constitutional or statutory priority, as the participating bondholders will have agreed to any deviation from such priorities.  If one assumes that Puerto Rico intends to seek concessions from the g.o. bondholders and/or COFINA bondholders, the statement that priorities will be “taken into account” in the proposed “super-exchange” can best be read as a statement that other types of tax-supported debt to be included in the proposed “super-exchange” may be offered less favorable exchange ratios than the g.o.’s and/or COFINAs.
  • The difficulties and uncertain outcome of consensual debt reduction negotiations involving PREPA, a single credit payable solely from electricity revenues widely deemed insufficient to cover the associated revenue bonds, do not bode well for the outcome of consensual debt reduction negotiations involving homogenization of numerous separate credits, including some with strong legal claims for full payment of their debt.
  • Negotiated exchanges involving some degree of municipal debt reduction or bondholder concessions have succeeded in certain other contexts, but few that we are aware of in which the issuer did not have access to a bankruptcy option as an alternative. Successful exchanges involving issuers that did not have access to a bankruptcy process (e.g., certain tribal casino bonds) involved debt that did not benefit from strong legal claims on tax revenues of the type held by Puerto Rico’s g.o. and COFINA holders.

Puerto Rico’s announced strategy for dealing with its debt has evolved from ring-fencing its tax-supported debt and attempting to address its public corporation debt with a Puerto Rico bankruptcy statute to targeting its tax-supported debt in a consensual negotiation process.  The Working Group and its advisors may sincerely believe that a “debt lite” consommé can emerge from such pot-stirring, but may also believe that a failed process will provide additional ammunition for what Puerto Rico really wants to address its unwieldy debt structure: enactment of federal “super Chapter 9” legislation that would give it access to a federal bankruptcy process encompassing its g.o. bonds as well as its public corporation debt.

The IRS’s Proposed ABLE Regulations: Obstacles to Launching State Programs, and Potential Solutions

Posted in Regulatory Proposals


The IRS’s recently-published proposed regulations for Section 529A qualified ABLE programs have taken some wind out of the sails of state program administrators and potential program managers who had hoped for regulations that hewed closer to the requirements in effect for qualified tuition programs under Section 529, on which Section 529A was based.  Some state officials and would-be program managers are evaluating whether cost-effective ABLE programs can be launched given what, at first blush, appear to be substantially greater administrative burdens imposed on state programs by the proposed ABLE regulations.

The hesitation provoked by the proposed regulations is understandable when one compares the IRS’s proposed administrative requirements to those applicable to Section 529 programs. Section 529 programs are not required to check whether an account owner is eligible to open an account, are not required to check on an annual basis whether the account owner’s status has changed, and are not required to inquire into or track the use of account withdrawals.  (As originally enacted, Section 529 did make programs responsible for determining whether distributions were qualified or unqualified, a requirement so unworkable that Congress amended Section 529 to eliminate it and make the recipient responsible for documenting the use of the distribution upon inquiry by the IRS.)

In marked contrast, the proposed ABLE regulations would require that ABLE programs do all of the above.

The resulting cost issue for ABLE programs and their potential customers is obvious. Due to statutory restrictions under Section 529A, annual contributions to ABLE accounts cannot exceed an inflation-indexed $14,000; Section 529 accounts have no such limit. Moreover, each state’s 529A program is limited to that state’s residents, unless another state elects to have its residents use the other state’s program instead of establishing its own program.  Section 529 programs, on the other hand, can gather assets from the entire nation.  If one adds to the substantially smaller projected amount of a particular ABLE program’s assets under management the expenses associated with the increased staff and systems programming necessitated by the additional verification and recordkeeping requirements imposed by the proposed regulations, the math is simple: greater expenses divided into fewer assets equals substantially higher program expenses to be recovered from program participants, and therefore reduced investment returns for the future expenses of disabled individuals.

A fair reading of the ABLE Act is that Congress intended the IRS, not the state programs, to be the watchdog that would ensure that ABLE programs are used by the disabled and for qualified disability expenses, and intended the Social Security Administration to determine whether ABLE account distributions are used for housing or unqualified expenses (in which case they are factored into the disabled individual’s eligibility for SSI benefits, whereas ABLE account distributions for non-housing qualified disability expenses are disregarded.)  But in an era where federal agency resources, particularly the IRS’s, are stretched, the proposed regulations have been drafted to effectively shift that responsibility, and the attendant costs, to the state programs.

The question the state programs and their potential contractors are struggling with is what exactly these unexpected and unwelcome responsibilities entail, and how much expense has been shifted from the federal government to the disabled community.  If the well-intentioned and long-sought ABLE Act is to achieve its objective, it will be in the interest of Congress, the IRS and the disability community, not just the state programs, to ensure that the administrative burden is reduced to the minimum necessary to make these programs function as intended.

The proposed regulations are not technically binding before they are finalized, and it is possible that, following the current 90 day comment period, the IRS will issue final regulations that lighten some of the proposed burden on ABLE program administrators.  But whether and when any more program-friendly final regulations will be issued is unknown, and the disability community deserves to have access to ABLE programs sooner than the indefinite future.  Unless and until the IRS, by advance notice or other clarification, provides better answers, individual states that wish to go forward with ABLE programs in advance of final regulations will need to reach a comfort level that they can comply with the IRS’s unexpected views on what a state must do to maintain its ABLE program’s beneficial tax status without making the pass-through costs of operating an ABLE program so expensive as to potentially outweigh the tax benefit.

A consensus on what practices are sufficient to comply with the proposed regulations without saddling ABLE programs with impracticable and expensive procedures will take some time to evolve.  Here is an initial perspective:

1)       Account–opening:

The proposed regulations state that “[a] qualified ABLE program must specify the documentation that an individual must provide, both at the time an ABLE account is established for that individual and thereafter, in order to ensure that the designated beneficiary of the ABLE account is, and continues to be, an eligible individual.”

For those account owners who are ABLE-eligible because they are eligible for SSI or SSDI disability benefits, the preamble to the proposed regulations suggests that “[f] or example, a qualified ABLE program could require the individual to provide a copy of a benefit verification letter from the Social Security Administration and allow the individual to certify, under penalties of perjury, that the blindness or disability occurred before the date on which the individual attained age 26.”  This suggestion may be workable if the Social Security Administration will provide such benefit verification letters with respect to the then-current tax year in short order upon request by an individual wishing to open an ABLE account.  Otherwise, if an individual can only provide a prior year benefit verification letter to the state program, states will need to decide whether, in connection with an account opening, they can rely upon the account owner’s certification, under penalties of perjury, that such eligibility status has not changed since the year in which the benefit verification letter submitted to the program was issued by the Social Security Administration.

As to those account owners who are ABLE-eligible under Section 529A because they file an eligibility certification and a physician diagnosis with the Secretary of Treasury, the preamble to the proposed regulations states that “[w]hile evidence of an individual’s eligibility based on entitlement to Social Security benefits should be objectively verifiable, the sufficiency of a disability certification that an individual is an eligible individual for purposes of section 529A might not be as easy to establish.”  The proposed regulations state that “a disability certification will be deemed to be filed with the Secretary [of Treasury] once the qualified ABLE program has received the disability certification”, which “deemed” filing, according to the preamble, is designed  “to facilitate an eligible individual’s ability to establish an ABLE account without undue delay.”

Taking the IRS at its word that the shifting of the certification filing from the Treasury, as specified in the statute, to the states, as specified in  the proposed regulations, is designed to “facilitate” account-opening “without delay,” it seems sensible to interpret the regulations as requiring a state to confirm no more than that a certification facially stating what the proposed regulations require has been signed or e-signed by the account owner (or his or her agent, parent or guardian), and is accompanied by a physician’s signed or e-signed letter facially providing the diagnosis on which the account owner’s certification relies.

Based on the proposed regulations, it appears that the certification filed with the ABLE program by or on behalf of the account owner must be signed or e-signed under pains and penalties of perjury and should state something along the following lines:

“(i)(A) I have the following medically determinable physical or mental impairment: _____________________________.  This impairment results in marked and severe functional limitations (as defined below), and—

(1) Can be expected to result in death; or

(2) Has lasted or can be expected to last for a continuous period of not less than 12 months; or

(B) I am blind (within the meaning of section 1614(a)(2) of the Social Security Act);

(ii) Such blindness or disability occurred before the date of my 26th birthday.

For purposes of this certification, “marked and severe functional limitations” means  the standard of disability in the Social Security Act for children claiming Supplemental Security Income for the Aged, Blind, and Disabled (SSI) benefits based on disability (see 20 CFR 416.906). Specifically, this is a level of severity that meets, medically equals, or functionally equals the severity of any listing in appendix 1 of subpart P of 20 CFR part 404, but without regard to age. (See 20 CFR 416.906, 416.924 and 416.926a.) Such phrase also includes any impairment or standard of disability identified in future guidance published in the Internal Revenue Bulletin. Consistent with the regulations of the Social Security Administration, the level of severity is determined by taking into account the effect of the individual’s prescribed treatment. (See 20 CFR 416.930.)  Conditions listed in the “List of Compassionate Allowances Conditions” maintained by the Social Security Administration (at www.socialsecurity.gov/compassionateallowances/conditions.htm) are deemed to meet the requirements of clause (i) of this certification.”

Based on the proposed regulations, it appears that the physician’s diagnosis accompanying the account owner’s certification must be signed or e-signed by the physician and should state:

“I hereby certify that I am a physician meeting the criteria of section 1861(r)(1) of the Social Security Act (42 U.S.C. 1395x(r)).  I further certify that I have examined ____________ and that, based on my examination, I have determined that s/he has the following physical or mental impairment: ________________________.”

The ABLE program administrator would need to determine that the account owner’s certification has been signed or e-signed in the name of the account owner or by someone who has certified that he or she is the account owner’s agent, parent or guardian, and that the diagnosis inserted in the blank of such certification matches the diagnosis in the blank of the physician’s diagnosis, and that the physician’s diagnosis is signed or e-signed.

It should be noted that draft tax instructions for Form 5498-QA released by the IRS require a program to report to the IRS annually, for each account and by code number, “the type of disability for which the designated beneficiary is receiving ABLE qualifying benefits.” The code menu on the draft IRS instructions is:

Code 1-  Developmental Disorders: Autistic Spectrum Disorder, Asperger’s Disorder, Developmental Delays and Learning Disabilities

Code 2 – Intellectual Disability: “may be reported as mild, moderate or severe intellectual disability”

Code 3 – Psychiatric Disorders: Schizophrenia, Major depressive disorder, Post-traumatic stress disorder (PTSD), Anorexia nervosa, Attention deficit/hyperactivity disorder (AD/HD), Bipolar disorder

Code 4 – Nervous Disorders: Blindness; Deafness; Cerebral Palsy, Muscular Dystrophy, Spina Bifida, Juvenile-onset Huntington’s disease, Multiple sclerosis, Severe sensoneural hearing loss, Congenital cataracts

Code 5 – Congenital anomalies: Chromosomal abnormalities, including Down Syndrome, Osteogenesis imperfecta, Xeroderma pigmentosum, Spinal muscular atrophy, Fragile X syndrome, Edwards syndrome

Code 6 – Respiratory disorders: Cystic Fibrosis

Code 7 – Other: includes Tetralogy of Fallot, Hypoplastic left heart syndrome, End-stage liver disease, Juvenile-onset rheumatoid arthritis, Sickle cell disease, Hemophilia, and any other disability not listed under Codes 1-6.

The tax instructions state that “the … information will only be used for aggregate reporting purposes as required by law.”

The notion that a state ABLE program established to provide investment accounts should have any role in determining which of the above panoply of medical conditions, if any, an account applicant suffers from sends off all sorts of alarm bells for many of those involved in structuring such programs. This proposed requirement can only be met by the relevant state program, if it can be met at all, by coding into the Form 5498 whatever condition the applicant and the physician have filled in on the forms submitted when the account is established. Even that will require coding additional fields into the ABLE programs’ operating system and may require staff to translate the conditions specified in the application materials into the appropriate code. And in the case of applicants who establish ABLE eligibility via eligibility for SSI or SSDI benefits, the diagnosis may not be apparent from the benefits letter submitted as proof. This is an unwarranted level of complexity and expense for the questionable benefit of then adding up all the painstakingly gathered disability codes into an aggregate report that has nothing to do with the ABLE program’s operations. But unless and until the IRS signals relief from this proposed requirement, ABLE programs that wish to go forward will need to design systems capable of generating such coding, at the expense of ABLE program participants.

2)           Annual recertification:

As noted above, the proposed regulations require that programs specify the documentation that must be provided after an account is opened to establish the account owner’s continued disabled status.  According to the proposed regulations,  “a qualified ABLE program may choose different methods of ensuring a designated beneficiary’s status as an eligible individual and may impose different periodic recertification requirements for different types of impairments.”  The proposed regulations include several impractical suggestions on compliance that presume that the state program has expertise on the likely length of particular disabilities (see the above list) and the likelihood of a cure being found for particular disabilities.  However, the proposed regulations also state: “If the qualified ABLE program imposes an enforceable obligation on the designated beneficiary or other person with signature authority over the ABLE account to promptly report changes in the designated beneficiary’s condition that would result in the designated beneficiary’s failing to satisfy the definition of eligible individual, the program also may provide that a certification is valid until the end of the taxable year in which the change in the designated beneficiary’s condition occurred.”

It seems likely that most states will follow this suggestion and include a requirement of such notice of change in disability status in the participation agreement or similar agreement executed or adopted by an account owner when the account is opened.  There is no reason to think that such a covenant by the account owner is any less “enforceable” than any other contractual agreement by the account owner, but as the proposed regulations are unclear on what the IRS means by “enforceable”, it may be prudent to state that the IRS is a third-party beneficiary of that particular covenant, so that the IRS can enforce it as it sees fit in the event it is breached by the account owner.

3) Tracking distributions:

The most perplexing provision in the proposed regulations states that “[a] qualified ABLE program must establish safeguards to distinguish between distributions used for the payment of qualified disability expenses and other distributions, and to permit the identification of the amounts distributed for housing expenses as that term is defined for purposes of the Supplemental Security Income program of the Social Security Administration.”

The proposed regulations also provide that “[i]f the total amount distributed from an ABLE account to or for the benefit of the designated beneficiary of that ABLE account during his or her taxable year does not exceed the qualified disability expenses of the designated beneficiary for that year, no amount distributed is includible in the gross income of the designated beneficiary for that year.”  Accordingly, for tax purposes, particular distributions are not made for qualified or unqualified purposes, or for housing purposes; instead, distributions may be requested at any point in the year, and then are simply compared in the aggregate to the account owner’s aggregate qualified disability expenses for the applicable tax year.

Because the account owner is not required for tax purposes to link a particular withdrawal to a particular expenditure, it is mystifying how the IRS and the Social Security Administration think programs can discharge this tracking and reporting duty.  No guidance whatsoever is provided on this point in the proposed regulations.  Given that some portion of the disabled community is expected to use ABLE accounts as transaction accounts, a requirement that states demand and examine invoices or receipts for each requested distribution, and determine in each case whether the amount is qualified or non-qualified and, if qualified, relates to housing, would substantially delay distributions and impose staffing requirements on programs or their contractors that would dramatically increase the expense ratios of ABLE investments. A distribution verification requirement is exactly what was amended out of Section 529 by Congress, and Congress did not reintroduce it statutorily when it enacted Section 529A.

This distribution tracking requirement, if not eliminated or clarified promptly by the IRS and the Social Security Administration, risks delaying or stopping many potential ABLE programs, particularly if interpreted to require anything more from the state program than a “check the box” section on distribution request forms.  States that are willing to proceed pending further clarification of this troubling element of the proposed regulations will likely provide account owners with distribution forms that ask that each requested distribution be broken down into subtotals relating to housing expenses, other qualified disability expenses, and unqualified expenses, all as determined and certified by the account owner under pains and penalties of perjury.  The state programs will make the required monthly reports to the Social Security Administration on the basis of such certifications.  Even the tracking of these subtotals and the related systems programming requirements will impose requirements on ABLE programs, and resulting expenses for ABLE program investors, that Section 529 programs are not burdened with and that are properly left between the Social Security Administration and those account owners receiving federal disability benefits.

IRS Revamps Proposed Issue Price Definition for Municipal Bonds

Posted in Tax/arbitrage


Treasury and IRS today announced a decision to withdraw the much-criticized portion of the notice of proposed rulemaking published in the Federal Register on September 16, 2013 (the “2013 Proposed Regulations”) related to the definition of issue price for tax-advantaged obligations and to propose a revised definition of issue price in its place. A determination by the IRS that the “issue price” has been erroneously calculated can have ramifications, including for the calculation of arbitrage yield, that could ultimately cause loss of tax-exempt status in the case of tax-exempt bonds and loss of federal subsidy in the case of Build America Bonds (BABs), hence the importance to the tax-exempt bond community of a clear and predictable definition.

The new proposed regulations (the “2015 Proposed Regulations”) are scheduled to be published in the Federal Register on June 24, 2015 and can be found here. A 90-day comment period will be followed by a hearing on October 28, 2015.

The 2015 Proposed Regulations eliminate most of the troublesome features of the 2013 Proposed Regulations, including maintaining a 10% standard rather than the 2013 Proposed Regulations 25% standard for what constitutes a “substantial amount” of obligations sold to the public. However, the 2015 Proposed Regulations do not maintain the long-established “reasonable expectations” standard for establishing issue price. Instead, the 2015 Proposed Regulations look to actual facts as the general rule.

In recognition of the need in the tax-advantaged debt world for certainty as of the sale date (particularly in the case of advance refundings), the 2015 Proposed Regulations helpfully provide an alternative method in the event a substantial amount of bonds have not been sold to the public as of the sale date. The alternative method allows reliance on the initial offering price if certain conditions are satisfied.

Procedures for satisfying the conditions for use of this alternative method will have to be developed, and underwriters may conclude that compliance will be difficult. In particular, a preclusion of sales at prices above the initial offering price unless it can be demonstrated that the differential is based on market changes could be problematic.

The 2015 Proposed Regulations will be effective for obligations that are sold on or after 90 days after final regulations are published in the Federal Register. However, issuers may rely upon the 2015 Proposed Regulations with respect to obligations that are sold on or after June 24, 2015, the date the 2015 Proposed Regulations will be published in the Federal Register.

IRS’s Proposed Section 529A Regulations for ABLE Programs: A Mixed Bag

Posted in Regulatory Proposals


The IRS today published, right on deadline, its proposed regulations relating to Section 529A state-sponsored “qualified ABLE programs,” under which  tax-advantaged investment accounts may be established to fund future “qualified disability expenses” of eligible disabled individuals.

The regulations are detailed and this posting will not attempt to summarize them in their entirety. Rather, a few provisions of the proposed regulations are highlighted below, along with some initial reactions.

Applicability: The regulations are issued as proposed regulations, and therefore technically are not in effect. Comments are due within 90 days of the publication date in the Federal Register, and a public hearing on the regulations will be held on October 14, 2015. The preamble to the regulations indicates taxpayers and state programs can rely on the proposed regulations until final regulations are adopted. Somewhat perplexingly, the preamble also indicates that the final regulations will be applicable to taxable years beginning after December 31, 2014. To the extent this suggests that the final regulations will be applicable retroactively, it appears inconsistent with the promise made in IRS Notice 2015-18 that “[t]he Treasury Department and the IRS intend to provide transition relief with regard to necessary changes to ensure that the state programs and accounts meet the requirements in the [regulatory] guidance, including providing sufficient time after issuance of the guidance in order for changes to be implemented.” One hopes that the IRS will clarify that such a transition period will be provided after final regulations are adopted, versus retroactive application of such final regulations to any taxpayer or program that has not complied with the proposed regulations; otherwise, programs and taxpayers may be forced to comply with the proposed regulations even though they are not legally effective.

Who May Establish an ABLE Account: Section 529A requires that the tax owner of any ABLE account be the eligible disabled beneficiary. The proposed regulations provide that if the beneficiary cannot establish the account on his or her own, it may be established on the disabled beneficiary’s behalf by an agent under power of attorney or, if there is no such agent, by a parent or legal guardian. This narrows the field of potential relatives who can establish an ABLE account for a disabled individual, and eliminates the ability of a non-parent to establish such an account unless he/she has a power of attorney or is a legal guardian. It also appears to preclude, or at least not acknowledge, the use of custodial accounts, such as an UTMA account, which is surprising.

Eligible individual determination: The proposed regulations are disappointing from the perspective of administrative ease and clarity on the key question of what documentation is required to establish and maintain an ABLE account. As an initial matter, the regulations cast the responsibility for verifying eligibility status on the state programs. The regulations indicate that a “qualified ABLE program must specify the documentation that an individual must provide, both at the time an ABLE account is established for that individual and thereafter, in order to ensure that the designated beneficiary of the ABLE account is, and continues to be, an eligible individual.”

There are two statutory methods for an individual to qualify as eligible for an ABLE account. One is the filing of a disability certification with the Secretary of the Treasury that certifies that the individual has a qualifying disability or is blind and that such disability or blindness occurred before the individual’s 26th birthday; the certification must include a physician-signed diagnosis of the relevant disability or blindness. The proposed regulations provide that “a disability certification will be deemed to be filed with the Secretary once the qualified ABLE program has received the disability certification.” The regulations are silent on what level of diligence the state program must engage in, if any, to establish that papers that purport to be a disability certification comply with the substantive requirements (including type of diagnosis) of the regulatory definition of a disability certification. This provision is likely to be perceived as problematic by state programs and to provoke a high level of pushback during the comment period from state administrators who believe that eligibility status should be between the taxpayer and the federal government, not something that a state has any role in verifying.

An alternative statutory basis for ABLE account eligibility is eligibility for Social Security Act benefits based on blindness or disability that occurred before the individual’s 26th birthday. The proposed regulations are silent on a state’s role in verifying this type of eligibility. The preamble to the proposed regulations states that “for example, a qualified ABLE program could require the individual to provide a copy of a benefit verification letter from the Social Security Administration and allow the individual to certify, under penalties of perjury, that the blindness or disability occurred before the individual’s 26th birthday.” While this non-regulatory example appears potentially less onerous in terms of state verification responsibility than the unclear role of a state program under the proposed regulations upon its receipt of a disability certification, it still raises some potentially thorny questions, such as, for example, whether a program is required to make a competency determination before relying upon a declaration signed by a disabled individual.

The proposed regulations’ treatment of eligibility determinations for years following the year in which an account is established is even vaguer. The regulations provide that “a qualified ABLE program may choose different methods of ensuring a designated beneficiary’s status as an eligible individual and may impose different periodic recertification requirements for different types of impairments.” The proposed regulations suggest that, with respect to the frequency of annual recertifications, ABLE programs “may take into consideration whether an impairment is incurable and, if so, the likelihood that a cure may be found in the future,” a suggestion that casts state officials entrusted with administering a financing program in the combined role of physicians and Nostradamus. The proposed regulations further suggest that a state program may establish a sliding scale of frequency of recertification based on the type of impairment. Less fantastically, the regulations suggest that “[i]f the qualified ABLE program imposes an enforceable obligation on the designated beneficiary or other person with signature authority over the ABLE account to promptly report changes in the designated beneficiary’s condition that would result in the designated beneficiary’s failing to satisfy the definition of eligible individual, the program also may provide that a certification is valid until the end of the taxable year in which the change in the designated beneficiary’s condition occurred.” This type of presumption that an individual continues to be eligible unless the program receives notice to the contrary is on the right track, but what constitutes an “enforceable obligation” by a disabled individual or his or her agent, parent or guardian to report a change in condition is anybody’s guess.

Residency requirement: Consistent with Section 529A, the proposed regulations require that, at the time an ABLE account is established, the designated beneficiary must be a resident of the state offering the program or a resident of a state without a program that has contracted with such other state for purposes of making its residents eligible to participate in such program. The proposed regulations state that for purposes of such residency requirement residency is determined under the law of the designated beneficiary’s state of residence. There is no guidance on whether any proof of residency is required or whether a state may rely on a certification made by or on behalf of the beneficiary as his or her state of residency. The proposed regulations confirm that a change in the beneficiary’s state of residency after an ABLE account is established does not affect the beneficiary’s right to continue to use the applicable ABLE account.

Cumulative contributions limit: The proposed regulations affirm that for purposes of the statutory cumulative contributions limit, which equals the cumulative limit imposed by the applicable state under its Section 529 qualified tuition program, it is permissible for the program to refuse additional contributions that would cause the limit to be exceeded (versus tracking the lifetime contributions to the account, irrespective of investment gains or losses.) This methodology is used by many Section 529 programs but had not been officially blessed by the IRS in that context.

Qualified disability expenses: The proposed regulations provide a hoped-for generous definition of “qualified disability expenses” which states that such term “includes basic living expenses and [is] not limited to items for which there is a medical necessity or which solely benefit a disabled individual.”

State role regarding qualified disability expenses: Quite unexpectedly, the proposed regulations state that “[a] qualified ABLE program must establish safeguards to distinguish between distributions used for the payment of qualified disability expenses and other distributions, and to permit the identification of amounts distributed for housing expenses as that term is defined for purposes of the Supplemental Security Income program.” This purported duty of state programs to monitor the use of distributions from ABLE accounts has no basis in the Section 529A statutory language, is inconsistent with the manner in which similar language in Section 529 has been construed by the IRS, and is at odds with other provisions of the proposed regulations that provide for qualified distribution expenses to be determined by the taxpayer on an annual basis, not by tracing of particular distributions to particular expenses. This provision is highly problematic from a practical as well as a legal perspective and will likely provoke a high level of pushback during the comment period.

Medicaid lien: The proposed regulations state that an ABLE program “must provide that a portion or all of the balance remaining in an ABLE account of a deceased designated beneficiary must be distributed to a State that files a claim against the designated beneficiary or the ABLE account itself with respect to benefits provided to the designated beneficiary under the State’s Medicaid plan … after … the date on which the ABLE account, or any ABLE account from which amounts were rolled over or transferred to the ABLE account of the same designated beneficiary, was opened….” The proposed regulations provide no guidance on whether the program must keep an ABLE account open for a particular period of time following a designated beneficiary’s death, or whether the beneficiary’s estate can direct closure of the account at any time and distribution to the estate of all amounts remaining in the account.

Reporting: The proposed regulations include detailed reporting requirements for ABLE programs, including references to new forms to be used by state programs in reporting data regarding the establishment of ABLE accounts (Form 5498-QA) and in reporting distribution data (Form 1099-QA). The preamble to the proposed regulations also references a Congressional report “that States should work with the Commissioner of Social Security to identify data elements for the monthly reports [required to be submitted to the Commissioner of Social Security], including the type of qualified disability expenses.” As noted above, the suggestion that States will have a duty to report types of qualified disability expenses is both legally and practically problematic.



First Circuit Hears Oral Arguments on Validity of Puerto Rico’s Recovery Act

Posted in Bankruptcy


A few reactions to today’s oral arguments before the U.S. Court of Appeals for the First Circuit regarding the validity of Puerto Rico’s Recovery Act:

  • On the three judge panel, Chief Judge Lynch seemed prepared to uphold the lower court decision invalidating the Recovery Act; she suggested  that Congress’s amendment of the Bankruptcy Code to eliminate the Chapter 9 eligibility of Puerto Rico’s instrumentalities could be interpreted as reflecting Congressional intent that Congress, and not Puerto Rico, should determine how to deal with Puerto Rico’s municipal insolvencies.  Judge Torruella seemed more sympathetic to Puerto Rico’s arguments that the statutory language does not articulate any such intent, that there is no legislative history as to the rationale for the removal of Puerto Rico from Chapter 9 eligibility, and that Congressional intent to preempt Puerto Rico’s use of its police power to enact bankruptcy legislation addressing a fiscal crisis cannot be assumed absent affirmative evidence of such intent.  The third judge on the panel, Judge Howard, asked fewer questions, but asked some pointed ones relating to the potential severability of certain provisions of the Recovery Act.  At the end of the arguments, Chief Judge Lynch characterized the case as an important one and pledged that the court would “work hard” on its decision.
  • On the basis of the judges’ questions, it seems more likely that the panel will uphold the lower court’s decision than that it will reverse it, although the decision may be a close one.  It is possible that the court will remand the case back to the District Court with instructions to determine whether provisions of the Recovery Act that do not impact nonconsenting creditors can be salvaged by severing those that do (versus invalidating the entire Recovery Act), but it is questionable that such a statute, and such an exercise, would be of any utility.
  • Either way, there is a good chance that the First Circuit’s opinion will turn out to be a way station on a longer road, the next segment of which will be an appeal to the U.S. Supreme Court.
  • The appellants pressed their arguments that, read literally, Section 903 of the Bankruptcy Code is only applicable in situations involving a Chapter 9 debtor, which Puerto Rico instrumentalities by definition cannot be, and that the lower court therefore misconstrued Section 903 in holding its restrictions on nonfederal bankruptcy statutes applicable to Puerto Rico. The oral arguments then focused primarily on whether a literal interpretation of Section 903 as inapplicable to Puerto Rico would or would not lead to absurd results and/or results that Congress could not have intended, and on what Congressional intent can be inferred (given little, if any, applicable legislative history) from the chronology of revisions to provisions of federal bankruptcy statutes impacting the inclusion or exclusion from federal bankruptcy eligibility of the District of Columbia, Puerto Rico and other territories.  Each side construed the legislative chronology as clearly supporting their clients’ views of whether Congress’s ultimate exclusion of Puerto Rico’s instrumentalities from Chapter 9 eligibility was or wasn’t intended to leave Congress with the sole power to enact any bankruptcy statute for such excluded instrumentalities.  When Judge Torruella asserted that it would be highly unusual for Congress to leave Puerto Rico in a “no man’s land” with no recourse to any bankruptcy process, Chief Judge Lynch countered that perhaps Congress did not intend to leave Puerto Rico’s municipalities in limbo forever, but that it might take time for Congress to decide what approach to take.
  • Addressing arguments by the appellees that it would make no sense for Congress to eliminate Puerto Rico’s Chapter 9 eligibility while permitting Puerto Rico to “xerox Chapter 9 and make it worse” through a statute such as the Recovery Act, appellants’ counsel reminded the judges that Puerto Rico would be subject to substantial federal law constraints, such as the contracts clause, that would not be applicable in a Chapter 9 proceeding.   That is accurate, and brings to the fore the question of whether, even if Puerto Rico were to persuade the First Circuit or the U.S. Supreme Court that Section 903 does not preempt the Recovery Act or invalidate its key provisions, it will have done itself any favors.  Although the contracts clause is not impregnable, it sets a high bar for a public instrumentality’s restructuring of its own debts.  The Section 903 litigation is only the first salvo in an armada of facial and as applied legal assaults that would face any Puerto Rico issuer attempting to break its bond contracts.  Puerto Rico clearly believes that having a Recovery Act gives it more leverage in creditor negotiations than not having it, but any meaningful restructuring under the Recovery Act might well be legally ineffectual.  Whatever happens to the Recovery Act, Puerto Rico needs to find other ways to address its fiscal issues.

IRS Green Lights Section 529A ABLE Disability Programs

Posted in Tax/arbitrage


Pi Day comes but once a century, on 3/14/15. The Internal Revenue Service receives praise approximately as frequently. But the IRS deserves applause for its Notice 2015-18, released March 10, 2015, giving the green light to states to proceed with the establishment of tax-free investment programs for the disabled under new Section 529A of the Internal Revenue Code.

Section 529A, which became effective January 1, 2015, grants tax-free treatment to the earnings in so-called ABLE accounts established for eligible disabled beneficiaries and used for qualified disability expenses. As is the case with Section 529 programs, which offer tax-free investment for higher education expenses, Section 529A programs must be established by state instrumentalities and must comply with a variety of statutory requirements. But unlike Section 529, which permits anyone to establish a Section 529 account (subject to the imposition of taxes and tax penalties on amounts withdrawn for purposes other than the account beneficiary’s higher education expenses), Section 529A imposes restrictions on the front end designed to ensure that the account beneficiary is disabled. (Section 529A likewise imposes taxes and tax penalties on amounts withdrawn for purposes other than the account beneficiary’s qualified disability expenses.)

Many families with children or other relatives who meet Section 529A’s disability definition and the statute’s requirement that the disability have occurred before age 26 are understandably eager to establish nest eggs that are not only tax-free but also, by statute, disregarded (up to a balance of $100,000) for purposes of determining the beneficiary’s financial eligibility for federal disability benefits. However, states seeking to make ABLE accounts available to their residents must work through a host of legal, contractual and investment option issues before launching these new programs.

By releasing Notice 2015-18, the Treasury Department and IRS have addressed, wisely and effectively, one factor that threatened to delay the launch of ABLE programs: uncertainty over how the Treasury Department and IRS will interpret certain provisions of Section 529A.

In particular, while Section 529A is clear that an ABLE account beneficiary’s disability qualification is determined by or through the federal government (through the beneficiary’s receipt of Social Security disability benefits or the beneficiary’s filing with the Treasury Department of a disability certification accompanied by a physician’s diagnosis), it is silent on whether the state program has some unspecified duty to obtain assurances or confirm that such actions, which don’t involve the state program, have occurred. Section 529A, which permits disability status to be established at any time during a tax year, also does not specify the treatment of account contributions made to or received by an ABLE account on a date in a tax year that precedes the date on which the beneficiary satisfies the disability status requirements for the applicable tax year. In addition, there is no statutory clarity on what a program is required to do to confirm compliance with Section 529A’s state residency restrictions.

The legislation pursuant to which Section 529A was enacted requires that the Treasury Department promulgate regulations under Section 529A by June 19, 2015 (six months from enactment.) It is unclear whether the Treasury Department will be able to meet this deadline. Even if the Treasury Department were to meet that deadline, some states might have concerns about structuring, much less launching, an ABLE program before there is regulatory guidance resolving some of the statutory ambiguities potentially affecting the program’s tax-exemption under Section 529A.

Notice 2015-18 straightforwardly acknowledges the tax uncertainty concerns and addresses them, asserting that “[t]he Treasury Department and the IRS do not want the lack of guidance to discourage states from enacting their enabling legislation and creating their ABLE programs, which could delay the ability of the families of disabled individuals or others to begin to fund ABLE accounts for those disabled individuals.” The Notice goes on to state that “the Treasury Department and the IRS are assuring states that enact legislation creating an ABLE program in accordance with section 529A, and those individuals establishing ABLE accounts in accordance with such legislation, that they will not fail to receive the benefits of section 529A merely because the legislation or the account documents do not fully comport with the guidance when it is issued.”

The Notice further states that “the Treasury Department and the IRS intend to provide transition relief with regard to necessary changes to ensure that the state programs and accounts meet the requirements in the guidance, including providing sufficient time after issuance of the guidance in order for changes to be implemented.”

This language represents a fairly extraordinary expression by the Treasury and the IRS of their intent to get out of the way as a potential obstacle to, or delaying factor in, the launching of ABLE programs. This approach is sympathetic to the cause and needs of families of disabled individuals, and deserves commendation. Although the Notice will not result in instantaneous availability of ABLE programs given the non-tax complexities of structuring the programs, it makes the states’ task in launching such programs appreciably less daunting.

Notice 2015-18 also includes an advance notice which acknowledges that, although Section 529A requires that the disabled beneficiary of an ABLE account be the account owner, someone other than the disabled beneficiary may have signature authority for the account. The advance notice, unsurprisingly, indicates that the regulatory guidance when issued will preclude any such person with signature authority who is not the account owner from acquiring a beneficial interest in the account, and will require such person to administer the account in the interests of the account owner/beneficiary.

Current and Former SEC Officials Speak About Enforcement Issues Concerning Municipal Securities

Posted in Disclosure


Last week, the National Association of Bond Lawyers held its 13th Annual Tax and Securities Law Institute.  Some of the panels included current and former employees of the SEC who spoke on several of the more notable recent developments with respect to enforcement actions in the Municipal Securities space:

1)  The SEC is policing negligence.  Peter Chan, a former staff member of the SEC’s Enforcement Division, acknowledged that suspicion of recklessness is no longer seen by the Staff as a prerequisite for opening an SEC investigation of an issuer – negligence is sufficient.  He noted how “people walking in a fog can cause as much harm as people conspiring to do wrong.” Chan also cited SEC Chairman White’s “broken windows” strategy in support of this practice, and said that the MCDC Initiative is a prime example. However, Chan also acknowledged that the SEC is not likely to bring a case if an issuer has followed sound disclosure policies and procedures and engaged in thoughtful deliberations, even if the SEC questions the accuracy of statements made in the Official Statement.

2)  Exploration of Allen Park and control person liability.  During one of the panels, Mark Zehner, Deputy Chief of the Enforcement Division’s Municipal Securities and Public Pension Division Unit, spoke at some length about the Allen Park, Michigan case in which the SEC, for the first time, charged a municipal official (the mayor of the city) as a “controlling person” under Section 20(a) of the Exchange Act.  Mr. Zehner noted that the SEC has a lot of experience with control person liability, and has brought more than one thousand such cases in the private sector. From his presentation, it appeared as if one of the reasons why the SEC chose to assert a Section 20(a) claim in the Allen Park case was the somewhat more flexible standard for proving control person liability that exists in the Sixth Circuit.  Mr. Zehner noted that the SEC has a lot of ways to hold someone liable (e.g., aiding and abetting) without having to resort to Section 20(a) liability and that there is a good faith exception to control person liability written right into the statute. Reading between the lines, it appears as if the SEC believed they had proof that Allen Park’s mayor was complicit in the alleged fraud and they had an opportunity to use control person liability in a way that would make headlines and create a deterrent for other municipal officials around the country.

3)  Update on the MCDC initiative.  LeeAnn Gaunt, Chief of the Enforcement Division’s Municipal Securities and Public Pensions Unit, spoke at some length about the MCDC Initiative. She did not disclose the number of reports the SEC received, but from her comments it appears as if the SEC received a substantial number of them.  She explained that the Staff is dealing with the broker-dealer submissions first, but are cross-checking to see if issuers reported the same transactions. Settlement orders will be released in batches so as not to stigmatize individual broker-dealers. The orders will identify two or three types of material failures but will not identify issuers or transactions. The broker-dealers will be given two weeks to sign the papers and return them. Ms. Gaunt did not commit to a timetable as to when this would occur, but implied that there would likely be several waves of orders during this calendar year. Every party that self-reported will receive a response from the SEC at some point. Issuers who were reported by broker-dealers but did not self-report will not necessarily hear from the SEC.

Puerto Rico’s Recovery Act Ruled Preempted: What Now?

Posted in Bankruptcy, State Law


At the end of “The Candidate”, Robert Redford’s title character, having won, famously asks, “What do we do now?”

A similar question can be asked now that the federal district court in Puerto Rico has struck down the Puerto Rico Public Corporation Debt Enforcement and Recovery Act.

In a February 6, 2015 opinion, Judge Besosa rejected enough of Puerto Rico’s ripeness and standing arguments to reach the merits of the plaintiffs’  challenges to the validity of the Recovery Act.  As we had anticipated, Judge Besosa held that the Recovery Act is preempted by Section 903(1) of the federal Bankruptcy Code, which provides that “a State law prescribing a method of composition of indebtedness of [a] municipality may not bind any creditor that does not consent to such composition.”  The Recovery Act contains provisions that purport to permit changes to the debt obligations of eligible Puerto Rico public corporations without the consent of all affected debtholders. The court held that Section 903(1) applies to Puerto Rico, and that it not only invalidates those provisions of the Recovery Act that purport to bind non-consenting creditors, but preempts the Recovery Act entirely.

Puerto Rico enacted the Recovery Act because the federal Bankruptcy Code precludes Puerto Rico’s public corporations from availing themselves of Chapter 9 of the federal Bankruptcy Code to restructure their debts. Puerto Rico’s public officers are now asking themselves the Spanish version of Redford’s question: “Y ahora que hacemos?” Certain creditors of PREPA and other overleveraged Puerto Rico issuers may be asking variations of that question.

Some potential answers:

1)      The Recovery Act may yet recover. In addition to the ripeness and standing issues, Judge Besosa’s opinion rests on a textual analysis of Section 903(1), including the definition of the word “creditor” as used therein and elsewhere in the Bankruptcy Code and its applicability to creditors of an entity that is not a debtor in a federal proceeding. Puerto Rico is likely to appeal the federal district court’s ruling, both as to the ripeness and standing analysis and as to the applicability of Section 903 to Puerto Rico and the Recovery Act. The ruling is certainly a victory for the plaintiff bondholders and takes the Recovery Act off the table for the near future. In addition, Judge Besosa’s discussions of the contract clause and taking clause issues with the Recovery Act highlight the obstacles the Recovery Act has faced from the beginning as legislation that does not benefit from the federal bankruptcy power’s override of the contracts clause. Accordingly, a resurrected version of the Recovery Act, if any, would continue to face substantial legal challenges. But the Recovery Act, or something like it, will remain hovering in the background of any restructuring discussions during the pendency of the likely appeal.

2)      The invalidation of the Recovery Act, whether or not it proves permanent, eliminates the only existing process under which those public entities that would have been eligible to restructure under that legislation could do so over the objections of holdouts.  Both for Puerto Rico and for those creditors who believe that PREPA and/or certain other Puerto Rico issuers are incapable of sustaining their existing debt and must restructure, the invalidation of the Recovery Act may provide additional impetus to try to persuade the U.S. Congress to amend the Bankruptcy Code to authorize Puerto Rico to authorize its public corporations, or certain of its public corporations, to file for bankruptcy under Chapter 9. Such legislation was filed in the prior session of Congress and its viability may be somewhat enhanced by Judge Besosa’s ruling.

3)      While any Recovery Act appeal wends its way through the higher courts, and while any  legislation to amend the federal Bankruptcy Code seeks to wend its way through Congress, PREPA and PREPA’s creditors, and any other Puerto Rico issuers who seek debt relief and their creditors, will need to negotiate without a forum, without a final arbiter, and without the ability to impose a majority or supermajority consensus on holdouts. That process can be a messy and difficult one, but not necessarily an impossible one. In contrast to Robert Redford’s most recent movie, the working title for the as-yet-unfinished movie about Puerto Rico and its creditors remains All Is Not Lost.