Insights Past Issues

In June, the IRS issued several notices that provide more details on the SECURE Act, passed in late 2019, and the CARES Act, passed in late March. This Client Alert will cover two primary topics: Coronavirus-Related Distribution Rules and the 2020 RMD Waiver Rule.

As companies default under their credit agreements, lenders have to decide what course of action is appropriate to effectuate their goals. Should the lender give the borrower breathing room by entering into a forbearance agreement in exchange for certain milestones, or is more aggressive enforcement action required?

This is the third and final Client Alert of a three-part series relating to executing a Strict Foreclosure. As discussed in our previous Client Alerts, it is imperative to focus on who is going to run the business after consummating the Strict Foreclosure.

The CARES Act, which was designed to support individuals and businesses affected by the COVID-19 pandemic, was signed into law on March 27. This article summarizes various tax provisions in the CARES Act.

The CARES Act, which was enacted to support individuals and businesses affected by the COVID-19 pandemic, provides that borrowers experiencing financial hardship due to the national emergency declared by the President, may request and obtain forbearance on certain federally backed mortgage loans.

This is the second Client Alert of a three-part series relating to executing a Strict Foreclosure. 

This Client Alert is part of a three Alert series. This Alert focuses on when Strict Foreclosure can be a lender’s best option and the potential path to execute a Strict Foreclosure. 

The Federal Reserve has established the Main Street Loan Program to provide support to small and medium-sized businesses that were in sound financial condition before the onset of the COVID-19 pandemic.

On June 16, the Securities and Exchange Commission issued an order granting registered municipal advisors an emergency, temporary conditional exemption from broker registration under Section 15 of the Securities Exchange Act of 1934 in connection with certain direct placement activities.

The General Assembly passed Senate Bill 2135 on May 23 and the Governor signed the same on June 12. The Act provides greater flexibility for public bodies to conduct business remotely when in-person attendance is not feasible due to a disaster.

On June 11, the Federal Reserve Bank of New York issued an updated Notice of Interest for the Municipal Liquidity Facility to reflect the expansion of eligibility for the facility.

On June 5, the Paycheck Protection Program Flexibility Act of 2020 was signed into law and made key changes to the Paycheck Protection Program just a few weeks before the program’s official termination on June 30.

On June 3, the Federal Reserve announced expanded eligibility for its Municipal Liquidity Facility. Under the new terms, a State that does not have at least two total counties or cities that meet the minimum population requirements will be able to identify a city or county to be an Eligible Issuer.

This client alert will address questions about loan forgiveness under the Paycheck Protection Program for both borrowers and lenders as known at the current time, but we note that legislative efforts currently underway may change the terms of these loan forgiveness provisions.

On May 23, the General Assembly passed Senate Bill 2135, providing for amendments to Sections 2.01 and 7 of the Open Meetings Act of the State of Illinois. The changes provide greater flexibility for public bodies to conduct business remotely when in-person attendance is not feasible due to a disaster.

On May 4, the IRS issued Revenue Procedure 2020‑19, which provides temporary relief to publicly‑offered regulated investment companies and publicly‑offered real estate investment trusts, with respect to stock distributions that are intended to qualify for the dividends-paid deduction.

The Federal Reserve today issued an amended term sheet establishing pricing criteria for its Municipal Liquidity Facility last described in our April 29 Client Alert. The Federal Reserve Bank of New York also issued today a revised FAQs for the facility.

On May 4, the SEC Chairman and the Director of the Office of Municipal Securities issued a public statement encouraging issuers, conduit borrowers and other obligated persons of municipal securities to make disclosures describing the effects of the COVID‑19 pandemic on their finances and operations.

This alert explores the three loan facilities constituting the Main Street Lending Program: the newly announced Main Street Priority Loan Facility, the revised Main Street New Loan Facility, and the revised Main Street Expanded Loan Facility.

Treasury Department guidance issued on April 22 summarizes three requirements for the use of payments from the Coronavirus Relief Fund. On May 4, FAQs were issued that “supplements” the guidance by answering a long series of questions about Eligible Expenditures and a shorter list of questions about the Administration of Fund Payments. 

On May 5, federal banking regulators adopted an interim final rule that neutralizes the liquidity coverage ratio impact for banks participating in the Federal Reserve’s Money Market Mutual Fund Liquidity Facility and the Paycheck Protection Program Liquidity Facility.

On April 27, the Federal Reserve issued a press release announcing changes to the Municipal Lending Facility described in previous client alerts. At the same time, the Federal Reserve Bank of New York, as sole Reserve Bank lender for the facility, issued a FAQs for the facility.

The Paycheck Protection Program and Health Care Enhancement Act was signed into law today. This alert summarizes key portions of the Act and recently released information from the Department of Health and Human Services explaining its plans to allocate and distribute the Provider Relief Fund money.

On April 9, the Federal Reserve issued term sheets for six “new” funding facilities under the CARES Act. This client alert describes in detail the Municipal Liquidity Facility.

Chapman’s "Bankruptcy and Aircraft Finance" handbook details certain special rights afforded aircraft creditors and some of the strategies employed. With the airline industry suffering devastating losses as a result of the COVID-19 pandemic, we hope this will be a useful resource for creditors.

On April 13, the IRS released Revenue Procedure 2020-26, which provides that forbearances and related modifications of certain mortgage loans will not be treated as replacing the unmodified loan with a newly issued loan for purposes of the REMIC and grantor trust qualification tests (and related REMIC-related taxes).

On April 9 the Federal Reserve issued term sheets for six “new” funding facilities under the CARES Act. Three of those facilities provide for direct loans to companies. 

The Coronavirus Aid, Relief, and Economic Security Act to support individuals and businesses affected by COVID-19 pandemic was signed into law on March 27. This client alert summarizes the various tax provisions in the CARES Act.

On April 9, 2020, the Federal Reserve released a revised term sheet for TALF 2020 that, among other things, broadens the range of assets that qualify as eligible collateral under the program.

Earlier today the Federal Reserve announced it would establish six new funding facilities supported by Treasury funding authorized by Section 4003(b)(4) of the CARES Act.

On February 19, the Small Business Reorganization Act came into effect and Debtors with aggregate liabilities that do not exceed $2,566,050 were provided an opportunity to resolve their outstanding liabilities. But even before the SBRA could see its first successes (or failures), the Coronavirus Aid, Relieve and Economic Security Act of 2020 increased a small business’s debt threshold.

In these uncertain times, parties to bond documents (including documents such as continuing covenant agreements) may wish to waive, modify or renegotiate certain provisions, including the forbearance and deferral of debt service, the waiver of provisions or the exercise of certain options.

The Federal Reserve Bank of New York has posted FAQa for the Commercial Paper Funding Facility described in our March 19 client alert, and amended as described in our March 24 client alert.

The SEC has taken several actions to assist funds and advisers in light of the effects of COVID-19. Similarly, FINRA also has taken several actions to provide guidance and certain regulatory relief to its member firms.

The Federal Reserve has established a webpage that provides links to a FAQ and other documents for the Money Market Fund Liquidity Facility described in earlier Chapman client alerts.

Yesterday the Federal Reserve announced it was temporarily removing Treasury securities and deposits at Federal Reserve Banks from the supplementary leverage ratio applicable to Category I-III bank holding companies or US intermediate holding companies of foreign banks.  

In response to the COVID-19 pandemic, federal and state courts throughout the country are issuing general orders providing for important changes to procedures for pending and newly scheduled court hearings. This is a summary of such procedural changes for the federal courts located in Chicago and the state courts in Cook and the surrounding collar counties. 

This client alert has been updated from our March 31, 2020 client alert to reflect guidance from the U.S. Treasury Department and the Small Business Administration.

The $2 trillion stimulus bill is the largest stimulus bill in U.S. history and Congress’ third major piece of legislation to address the COVID-19 crisis. This client alert summarizes notable CARES Act provisions for Institutions of Higher Education.

The cornerstone of the CARES Act’s relief package for small businesses is the Paycheck Protection Program, under which the Small Business Administration will guarantee up to $349 billion in small business loans. 

The Coronavirus Aid, Relief, and Economic Security Act, a bill designed to provide financial support and resources to individuals and businesses affected by COVID-19 pandemic, was signed into law on March 27. This client alert summarizes notable CARES Act provisions for health care businesses, including hospitals and physician practices.

This Client Alert focuses on some major programs established by the Coronavirus Aid, Relief, and Economic Security Act to financially support, through loans or grants, (1) small businesses, (2) larger businesses, and (3) states and municipalities. 

While many questions and uncertainties exist with respect to the impact of COVID-19 on the economy, this is an overview of the prominent issues for lenders to consider regarding existing middle market credit agreements – particularly, as a spike in amendment and waiver activity is expected in coming months.

As Employers are facing unprecedented health and safety issues in connection with the COVID-19 pandemic and the rapidly changing nature of government mandates put in place to contain the spread of the virus, the United States Department of Labor, Occupational Safety and Health Administration has issued Guidance on Preparing Workplaces for COVID-19. 

H.R. 748 better known as the CARES Act or more informally as the $2 trillion stimulus bill signed by President Trump on March 27, 2020, contains one important provision for all consumer lenders and another two provisions related to federally-backed mortgage loans.

On March 23, the Federal Reserve announced the establishment of the Term Asset-Backed Securities Loan Facility to support the flow of credit to consumers and businesses. 

On March 23, the Federal Reserve issued further amendments to add negotiable certificates of deposit and all short-term municipal securities to the list of eligible collateral. 

On March 23, the Federal Reserve added municipal issuers and amended the pricing for the commercial paper funding facility announced on March 17 and issued other “program terms and conditions” posted on the website of the Federal Reserve Bank of New York.

This morning, the Board of Governors of the Federal Reserve System announced sweeping actions to help the economy.

On March 18, the Federal Reserve announced a Money Market Fund Liquidity Facility to make loans to banks and certain affiliates secured by certain assets acquired from “prime” money market funds. Earlier today, the Federal Reserve issued amendments to the program.

On March 17, the Federal Reserve Board announced the establishment of two emergency funding facilities that closely mirror facilities established in 2008 during the last financial crisis in providing liquidity to both short and long term funding markets.

In response to the COVID-19 pandemic, federal and state courts throughout the country are issuing general orders providing for important changes to procedures for pending and newly scheduled court hearings.

The IRS has released a new Form 8038-CP, Return for Credit Payments to Issuers of Qualified Bonds, along with new instructions. Form 8038-CP is used by issuers to claim payments from the federal government representing all or a portion of interest payable on direct pay bonds

Late in 2019, as part of a spending package, President Trump signed into law the Setting Every Community Up for Retirement Enhancement Act of 2019 or the SECURE Act. The legislation provides changes to defined contribution plans (such as 401(k) plans) and defined benefit pension plans.

Late in 2019, Congress passed the Setting Every Community Up for Retirement Enhancement or the SECURE Act. With few exceptions, the provisions in the Act are effective for retirement plans, IRAs, contributions and distributions on or after January 1, 2020.

In December 2017, Congress added a provision to the tax code that allows some taxpayers to defer some capital gain and eliminate other gain if the taxpayer invests in an Opportunity Zone and certain conditions are met. 

New treasury regulations proposed by the Internal Revenue Service on October 31 significantly diminish the sting of Section 956 for many US corporations that own stock in non-US corporations that have investments in US property.

The Internal Revenue Service recently provided excise tax relief for funds taxed as regulated investment companies that were required to increase their gross income because of the new Section 965 transition tax.

As an increasing number of jurisdictions have entered into intergovernmental agreements related to FATCA or agreed to mandate compliance with the OECD common reporting standard, exempt organizations are being asked to classify themselves in subscription agreements and forms provided to the investment vehicles.

On February 9, President Trump signed into law the Bipartisan Budget Act of 2018 which retroactively extended some temporary tax breaks and includes some additional provisions which were left out of the Tax Cuts and Jobs Act of 2017. 

Under 1991 US guidance, if a non-US partner sold its interest in a US partnership, the selling partner would look through to the business of the partnership and would be required to file a US tax return and pay US tax if the partnership would have had income effectively connected to a US trade or business on a deemed sale of its assets. But that guidance was reversed in a tax court case. Then the US position was reversed again in the Tax Cuts and Jobs Act.

For non-US individuals and corporations that invest in real estate within the US, the rules that subject their gains to US federal income tax generally are found under Section 897. The Foreign Investment in Real Property Tax Act rules have often been attacked as a disincentive for overseas investors to enter the US real estate market.

This article describes the impact of the Tax Cuts and Jobs Act on securitization transactions. The article addresses in detail the new limitation on the deduction for business interest expense as well as the requirement that the transferee of an equity interest in a partnership engaged in a US trade or business withhold 10% of the amount realized unless the transferor certifies that it is a US person. 

Although recent legislation commonly referred to as the Tax Cuts and Jobs Act retained Section 956 of the Internal Revenue Code (and its notorious deemed dividend issue), the enactment of other changes may reduce the impact of Section 956 on taxpayers.

On December 22, 2017, President Trump signed into law the most sweeping tax law changes in the last thirty years. Highlights of the new tax reform legislation as they impact individuals are summarized in this Client Alert.

Overlooked in the many discussions about the new tax laws are the consequences on trusts and estates and the high likelihood trusts and their beneficiaries will see larger income tax bills for the next seven years. This Client Alert focuses on how the tax changes will impact trusts and estates, identify some of the significant uncertainties and provide recommendations for fiduciaries.

On December 20, Congress passed the act commonly referred to as the Tax Cuts and Jobs Act of 2017. Although no provision of the Act was designed specifically to address securitization transactions, two new sets of rules are likely to have significant effects on at least some securitization transactions

On December 15, House and Senate conferees reached an agreement on the Tax Cut and Jobs Act and released the final version of the Bill, which is expected to be voted on this week in the House and Senate.

On August 11, the IRS issued Rev. Proc. 2017-45 which allows publicly offered real estate investment trusts and regulated investment companies to make stock distributions that will qualify for the dividends-paid deduction, if certain requirements are met, and therefore enable a RIC or REIT to meet its minimum annual dividend distribution tests. 

On November 2, Representative Brady released the “Tax Cuts and Jobs Act.” On November 9, the Senate Finance Committee released a “Description of the Chairman’s Mark of the ‘Tax Cuts and Jobs Act.’” This summary highlights four provisions in the proposed legislation that will be of particular interest to financial institutions.

In addition to changes in life, changes in the estate tax rules over the last decade have altered the planning options available for many married couples. If the federal estate tax laws are actually repealed by the current Congress, these options will be relevant for all married couples.

On November 2, Representative Brady released the proposed text of the long-awaited federal income tax reform bill. The bill also includes a provision that appears aimed at subjecting public pension plans to unrelated business taxable income.

On November 2, Representative Kevin Brady released the proposed text of the long-awaited federal income tax reform bill. The bill also includes a provision that creates a limit on the deductibility of interest. If enacted, this provision could have potentially wide-reaching impacts on securitization transactions.

On November 2, Representative Brady released the proposed text of the long-awaited federal income tax reform bill. If enacted into law, the bill would eliminate all tax-exempt private activity bonds, tax credit bonds and all tax-exempt advance refunding bonds.

The United States Treasury Department has withdrawn proposed regulations dealing with the definition of “political subdivisions” for purposes of the tax-exempt bond provisions of the federal tax law. Political subdivisions are divisions of state or local governmental units that can issue federally tax-exempt bonds. 

In an environment of growing global mobility of many families and heightened regulatory and compliance pressures, many U.S. estate planning advisors are encountering international issues for their clients with increasing frequency.

In September, the IRS released proposed regulations that would not only change the types of instruments that are registration-required obligations, but also clarify when a registration-required obligation meets the requirements to be treated as issued in registered form.

The American Bar Association’s Section of Taxation submitted a white paper on the history of the tax-exemption of interest on state and local bonds to the Internal Revenue Service.

On May 1, Tax Notes published a flurry of revocations of private letter rulings that had been issued to regulated investment companies. In each of the revocations, at least one of the rulings requested in the original private letter ruling was that the income from a commodity linked note was qualified income for the purposes of Internal Revenue Code § 851.

The Tax Exempt and Government Entities Division of the Internal Revenue Service announced changes to the information document request process in tax-exempt bond and tax-advantaged bond examinations.

On January 17, 2017, the Internal Revenue Service released new safe harbor guidelines for determining whether a management contract results in private business use of property for purposes of the federal income tax rules relating to tax-exempt bonds.

Last week, the IRS contemporaneously released two pieces of guidance related to the question of whether qualifying regulated investment company income could include indirect commodities income through controlled foreign corporations or derivative exposure to commodities. 

On August 22, the Internal Revenue Service released new safe harbor guidelines for determining whether a management contract results in private business use of property for purposes of the federal income tax rules relating to tax-exempt bonds.

The Internal Revenue Service issued Notice 2016-10 to address foreign tax credits and regulated investment companies. The Internal Revenue Code does not provide guidance on the question of how a RIC should treat refunds of foreign tax when it has made an election to pass the foreign tax credit to its shareholders. Notice 2016-10 begins to address this question.

On July 18, the U.S. Treasury and the Internal Revenue Service published final arbitrage regulations that contain revisions to the tax-exempt bond regulations relating to, among other things, working capital financings.

On April 4, the U.S. Treasury Secretary announced that the government would release regulations to curb inversions and reduce the ability of companies to avoid taxes through “earnings stripping;” those regulations were published in the Federal Register on April 8th. 

In December 2015, Congress passed the Protecting Americans from Tax Hikes Act of 2015, which extended certain federal renewable energy tax credits for projects that began construction prior to the dates set forth in the Path Act. In response to that extension, the IRS has issued additional guidance with respect to a renewable energy facility’s eligibility to receive these tax credits.

The Internal Revenue Service recently released proposed regulations concerning the definition of a “political subdivision” for purposes of tax-exempt financing.

On Oct. 27, 2015, the United States Treasury Department and the Internal Revenue Service published long-awaited final regulations that provide welcome guidance to 501(c)(3) health care organizations that are borrowers of qualified 501(c)(3) bonds.

Recent changes to the tax law will require partnerships to pay tax at the partnership level on certain audit adjustments to partnership income, and these changes may affect government pension plans that invest in partnerships.

In September, the IRS issued final regulations to clarify that controlled groups under the rules for regulated investment companies may consist of only two entities. This may cause unanticipated attributions of ownership, which would disqualify some RICs from beneficial tax treatment.

Many individuals no longer face a federal estate tax or need to be concerned with dividing assets between spouses for tax planning purposes. But for individuals residing in Illinois, and even non-residents who own Illinois property, not only is there still an estate tax, but the exemption is much smaller.

On October 1, 2015, the Tax Exempt and Governmental Entities Division of the Internal Revenue Service released its Tax Exempt and Governmental Priorities for Fiscal Year 2016. 

According to Giving USA, Americans gave an estimated $358.38 billion to charity in 2014, surpassing the peak last seen in 2007 prior to the Great Recession.

The Internal Revenue Service Office of Tax Exempt Bonds has announced a new sequester reduction in amounts paid to issuers of direct pay bonds for which issuers elected to receive a direct payment from the U.S. Treasury pursuant to Section 6431 of the Internal Revenue Code. 

According the U.S. Census Bureau, the number of unmarried, cohabiting couples in the United States has nearly doubled in the last decade. Since they are not subject to the rights and obligations that accompany a marital relationship, partners committing to a serious relationship should consider the need to affirmatively plan for themselves, each other, and any children.

On May 20th, the IRS released draft updates to the U.S. Model Income Tax Convention.

On June 8, 2015, Long Beach Community College District in California paid the Internal Revenue Service $1,013,000 as a result of the private activity use of certain real property acquired by the District with proceeds of tax-exempt certificates of participation issued in 2001. 

Private schools that are exempt from federal income taxation must file an annual information return with the IRS concerning their racial nondiscrimination policies. Schools that file the annual information return, Form 990, Return of Organization Exempt from Income Tax may satisfy this annual filing requirement on Schedule E.

Form 5578 is a half-page form simply certifying that a private school has complied with the racial nondiscrimination guidelines set forth by the Internal Revenue Service. The failure of a private school to annually file this form may jeopardize the school's tax-exempt status under Section 501(c)(3).

On June 24, 2015, Prop. Treas. Reg. §1.148-1(f) addressing the definition of “Issue Price” was published in the Federal Register. The Internal Revenue Service is accepting comments on the Proposed Regulation through September 22, 2015.

On January 13, 2015, the IRS published Notice 2015-4 to specify that the performance and quality standards applicable to small wind energy property intended to qualify for the investment tax credit are those established by the American Wind Energy Association or the International Electrotechnical Commission.

On October 15th, the IRS proposed a change to the regulations which would eliminate the requirement of a creditor to report cancellation of debt income on Form 1099-C after not receiving payment for 36 months.

On October 24, 2014, the IRS issued Notice 2014-67, Private Business Use of Tax-Exempt Bond Financed Facilities.

The Internal Revenue Service Office of Tax Exempt Bonds has announced a new sequester reduction in amounts paid to issuers of direct pay bonds for which issuers elected to receive a direct payment from the U.S. Treasury pursuant to Section 6431 of the Internal Revenue Code.

The Federal gift and estate tax exclusion amount shelters gifts and testamentary bequests from gift and estate tax.

Under the American Taxpayer Relief Act of 2012, qualified renewable energy generation facilities that began construction prior to January 1, 2014 are eligible to receive the renewable electricity production tax credit under section 45 of the Internal Revenue Code or, in lieu thereof, the energy investment tax credit under section 48 of the Code.

On May 2, 2014, the IRS released Notice 2014-33, offering transitional relief for the enforcement and administration of FATCA.

The Tax Reform Act of 2014 intends to simplify and consolidate the individual taxation scheme by consolidating, changing, or eliminating a variety of current tax benefits and the tax rates.

In today’s mobile society, individuals change their place of residence for a number of reasons: a new job opportunity, a new place for treatment or care, retirement or simply a desire for a change in life.

Pursuant to the American Taxpayer Relief Act of 2012, qualified facilities that begin construction before January 1, 2014 will be eligible to receive the renewable electricity production tax credit under section 45 of the Internal Revenue Code or, in lieu thereof, the energy investment tax credit under section 48 of the Code.

Late in the evening of January 1, 2013, Congress passed the American Taxpayer Relief Act of 2012, avoiding the tax portion of the so-called “fiscal cliff.” President Obama signed ATRA into law on January 2, 2013.

On August 10th, the Governor signed into law two bills (former HB 4662, now Public Act 97-0920, and former HB 4663, now Public Act 97-0921), making Illinois one of a growing number of states with statutes that address trust decanting and directed trusts. The new statutes will go into effect January 1, 2013. This client alert covers the trust decanting statute. Our prior client alert addressed the directed trust statute.

On August 10th, the Governor signed Public Act 97-0921 (former HB 4662 and 4663) making Illinois one of a growing number of states with statutes that address directed trusts and trust decanting. These new statutes will go into effect January 1, 2013. This client alert covers the directed trust statute.

The Internal Revenue Service recently released Notice 2012-44, which provides guidance concerning qualified energy conservation bonds. QECBs are taxable bonds that can be issued by state or local governments to finance certain energy conservation projects, including: (i) reducing energy consumption in publicly owned buildings by at least 20 percent; or (ii) implementing green community programs. QECBs may also be issued to finance certain electricity-producing facilities, such as wind facilities and solar facilities. 

The Internal Revenue Service recently released Notice 2012-44, which provides guidance concerning qualified energy conservation bonds. QECBs are taxable bonds that can be issued by State or local governments to finance certain energy conservation projects, including: (i) reducing energy consumption in publicly-owned buildings by at least 20 percent; and (ii) implementing green community programs. QECBs may also be issued to finance certain electricity-producing facilities, such as wind facilities and solar facilities.

With slightly less than six months remaining before the reappearance of the lower $1 million exemption from US gift tax, we are resending our June 2011 Client Alert regarding the advantages of using part or all of the $5 million (now $5.12 million) gift tax exemption before it expires at year-end.

Please contact your Chapman and Cutler LLP Trust and Estate attorney to discuss how and whether you may benefit from this unprecedented gifting opportunity.