Arbitrage
Profit from differences in markets. All tax-advantaged bonds are subject in one way or another to the arbitrage requirements, which are contained in Section 148 of the Code and the Treasury Regulations that go along with it.
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Temporary Period
The period of time (often set forth in the Tax Certificate), during which a particular category of proceeds may be invested in higher yielding investments without the Issue being treated as Arbitrage Bonds under Section 148 of the Code.
The availability of Temporary Periods is based on the reasonable expectations of the Issuer on the date of issuance of the Bonds as documented in the Arbitrage Certificate. Generally, sale proceeds and investment proceeds of new money Bonds for capital projects can be invested at an unrestricted Yield for a three-year Temporary Period if the time test, the due diligence test, and the expenditure test are met.
- The time test is met if the Issuer reasonably expects on the issuance date that the Issuer will incur within six months from the issuance date a substantial binding obligation to a third party to expend at least 5% of the net sale proceeds of the Bonds on capital projects.
- The due diligence test is met if the Issuer reasonably expects on the issuance date that completion of the capital projects and allocation of net sale proceeds to expenditures will proceed with due diligence.
- The expenditure test is met if the Issuer reasonably expects on the issuance date that at least 85% of the net sale proceeds of the Bonds will be allocated to expenditures on the capital projects within three years of the issuance date.
There are other Temporary Period rules and exceptions, which depend on the intended use of the proceeds being invested. These rules are complex, and should be discussed with your supervising attorney and, if applicable, Special Tax Counsel.
See Also
Yield
As computed under the Code provisions applicable to bonds, the internal rate of return that causes the present value of the payments of principal and interest (and, in certain cases, certain other payments) on an issue of bonds to equal the issue price of the bonds.
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Borrower’s Counsel
An attorney or firm of attorneys serving as counsel to the borrower in connection with a conduit financing.