Private Activity Bond Allocation Program Overview
Tax-exempt financing of “private activities” has been limited by federal law since the passage of the Tax Reform Act of 1986 (the “Tax Act”). Private activity bonds are those which have met any or all of the following tests:
1) Private Business Use Test – more than 10 percent of the proceeds are to be used for any private business use;
2) Private Security or Payment Test – payment on principal or interest of more than 10 percent of the proceeds is directly or indirectly secured by, or payments are derived from, a private business use;
3) Private Loan Financing Test – proceeds will be used to make or finance loans to persons other than governmental units.
The Tax Act also restricts the types of privately-owned public purpose projects which can take advantage of tax-exempt financing. The types of issues authorized, which are relevant to this section, are mortgage revenue bonds (MRBs), small-issue industrial development bonds (IDBs), certain state-voted bond issues, student loan bonds, and those for a variety of “exempt facilities”, including qualified residential rental projects (multi-family housing), sewage facilities, solid waste disposal facilities, and hazardous waste disposal facilities.
Additionally, the Tax Act imposes a volume ceiling on the aggregate principal amount of tax-exempt private activity bonds that may be issued within each state during any calendar year.
Section 146(e) of the Internal Revenue Code provides for each state to devise an allocation formula or a process for allocating the state’s ceiling. This provision has given each state the ability to allocate this limited resource in a manner consistent with the needs of that state. Since different states have different needs and demands, there are many varied allocation systems in place.
In an effort to address demand for most types of private activity bond financing, Texas has devised a system that ensures an opportunity for some allocation for each eligible project type. Because of the limited state ceiling, it is impossible to meet all the demands, but a system must be in place that ensures an equitable method of allocation.
Chapter 1372 of the Texas Government Code mandates the allocation process for the state of Texas. The Private Activity Bond Allocation Program regulates the volume ceiling and monitors the amount of demand and the use of private activity bonds each year. The Texas Bond Review Board has administered this program since January 1, 1992.