26 U.S.C. § 142 — Exempt facility bond

Page 653 TITLE 26—INTERNAL REVENUE CODE § 142 erage maturity date of the bonds to be refunded by such issue, ‘‘(2) the amount of the refunding bond does not ex- ceed the outstanding amount of the refunded bond, and ‘‘(3) the net proceeds of the refunding bond are used to redeem the refunded bond not later than 90 days after the date of the issuance of the refunding bond. For purposes of paragraph (1), average maturity shall be determined in accordance with section 147(b)(2)(A) of the 1986 Code. No limitation in section 1316(g) or 1317 on the period during which bonds may be issued under such section shall apply to any refunding bond which meets the requirements of this subsection. ‘‘(d) SPECIAL RULE PERMITTING CARRYFORWARD OF VOLUME CAP FOR CERTAIN TRANSITIONED PROJECTS.—A bond to which section 1312 or 1317 applies shall be treat- ed as having a carryforward purpose described in sec- tion 146(f)(5) of the 1986 Code, and the requirement of section 146(f)(2)(A) of the 1986 Code shall be treated as met if such project is identified with reasonable speci- ficity. The preceding sentence shall not apply so as to permit a carryforward with respect to any qualified small issue bond.’’ [Pub. L. 100–647, title I, § 1013(c)(2)(B), Nov. 10, 1988, 102 Stat. 3545, provided that: ‘‘The amendment made by subparagraph (A) [amending section 1313(a)(3)(C) of Pub. L. 99–514, set out above] shall apply to bonds issued after June 30, 1987’’.] [Pub. L. 100–647, title I, § 1013(c)(11)(E), Nov. 10, 1988, 102 Stat. 3547, provided that: ‘‘A refunding bond issued before July 1, 1987, shall be treated as meeting the re- quirement of subparagraph (A) of section 1313(c)(1) of the Reform Act [Pub. L. 99–514, set out above] if such bond met the requirement of such subparagraph as in effect before the amendments made by this paragraph [amending section 1313(c) of Pub. L. 99–514, set out above].’’] [Pub. L. 100–647, title I, § 1013(c)(14)(B), Nov. 10, 1988, 102 Stat. 3547, provided that: ‘‘The amendment made by subparagraph (A) [amending section 1313 of Pub. L. 99–514, set out above] shall apply with respect to re- funding bonds issued after October 16, 1987.’’] [Pub. L. 100–647, title I, § 1013(e)(2)(B), Nov. 10, 1988, 102 Stat. 3548, provided that: ‘‘The amendment made by subparagraph (A) [amending section 1315(e) of Pub. L. 99–514, set out above] shall apply to bonds issued after June 10, 1987.’’] [Pub. L. 100–647, title I, § 1013(f)(1)(B), Nov. 10, 1988, 102 Stat. 3549, provided that: ‘‘The amendment made by subparagraph (A) [amending section 1316 of Pub. L. 99–514, set out above] shall apply only with respect to carryforwards of volume cap for years after 1986.’’] [Pub. L. 100–647, title I, § 1013(f)(7)(B), Nov. 10, 1988, 102 Stat. 3549, provided that: ‘‘The amendment made by subparagraph (A) [amending section 1316(g)(8) of Pub. L. 99–514, set out above] shall apply only with respect to carryforwards of volume cap for years after 1986.’’] REGULATIONS Pub. L. 99–514, title XIII, § 1301(i), Oct. 22, 1986, 100 Stat. 2657, provided that: ‘‘The Secretary of the Treas- ury or his delegate shall amend the provision in the Federal income tax regulations relating to when use pursuant to certain output contracts is considered to satisfy the private business tests of paragraphs (1) and (2) of section 141(b) of the Internal Revenue Code of 1986 to eliminate the requirement of a 3 percent guaranteed minimum payment.’’ APPLICATION OF SECURITY INTEREST TEST TO BOND FINANCING OF HAZARDOUS WASTE CLEAN-UP ACTIVITIES Pub. L. 100–647, title VI, § 6179, Nov. 10, 1988, 102 Stat. 3727, provided that: ‘‘Before January 1, 1989, the Sec- retary of the Treasury or his delegate shall issue guid- ance concerning the application of the private security or payment test under section 141(b)(2) of the Internal Revenue Code of 1986 to tax-exempt bond financing by State and local governments of hazardous waste clean- up activities conducted by such governments where some of the activities occur on privately owned land.’’ STATE AND LOCAL GOVERNMENT SERIES MODIFICATIONS Pub. L. 99–514, title XIII, § 1301(d), Oct. 22, 1986, 100 Stat. 2654, provided that: ‘‘Notwithstanding any other provision of law or any regulations promulgated there- under (including the provisions of 31 CFR part 344) the Secretary of the Treasury shall extend by January 1, 1987, the State and Local Government Series program to provide— ‘‘(1) instruments allowing flexible investment of bond proceeds in a manner eliminating the earning of rebatable arbitrage, ‘‘(2) demand deposits under such program by elimi- nating advance notice and minimum maturity re- quirements related to the purchase of bonds, ‘‘(3) operation of such program at no net cost to the Federal Government, and ‘‘(4) deposits for a stated maturity under reasonable advance notice requirements.’’ MANAGEMENT CONTRACTS Pub. L. 99–514, title XIII, § 1301(e), Oct. 22, 1986, 100 Stat. 2655, provided that: ‘‘The Secretary of the Treas- ury or his delegate shall modify the Secretary’s ad- vance ruling guidelines relating to when use of prop- erty pursuant to a management contract is not consid- ered a trade or business use by a private person for pur- poses of section 141(a) of the Internal Revenue Code of 1986 to provide that use pursuant to a management con- tract generally shall not be treated as trade or business use as long as— ‘‘(1) the term of such contract (including renewal options) does not exceed 5 years, ‘‘(2) the exempt owner has the option to cancel such contract at the end of any 3-year period, ‘‘(3) the manager under the contract is not com- pensated (in whole or in part) on the basis of a share of net profits, and ‘‘(4) at least 50 percent of the annual compensation of the manager under such contract is based on a periodic fixed fee.’’ § 142. Exempt facility bond (a) General rule For purposes of this part, the term ‘‘exempt facility bond’’ means any bond issued as part of an issue 95 percent or more of the net proceeds of which are to be used to provide— (1) airports, (2) docks and wharves, (3) mass commuting facilities, (4) facilities for the furnishing of water, (5) sewage facilities, (6) solid waste disposal facilities, (7) qualified residential rental projects, (8) facilities for the local furnishing of elec- tric energy or gas, (9) local district heating or cooling facili- ties, (10) qualified hazardous waste facilities, (11) high-speed intercity rail facilities, (12) environmental enhancements of hydro- electric generating facilities, (13) qualified public educational facilities, (14) qualified green building and sustainable design projects, (15) qualified highway or surface freight transfer facilities, (16) qualified broadband projects, or (17) qualified carbon dioxide capture facili- ties. (b) Special exempt facility bond rules For purposes of subsection (a)— Page 654 TITLE 26—INTERNAL REVENUE CODE § 142 (1) Certain facilities must be governmentally owned (A) In general A facility shall be treated as described in paragraph (1), (2), (3), or (12) of subsection (a) only if all of the property to be financed by the net proceeds of the issue is to be owned by a governmental unit. (B) Safe harbor for leases and management contracts For purposes of subparagraph (A), property leased by a governmental unit shall be treat- ed as owned by such governmental unit if— (i) the lessee makes an irrevocable elec- tion (binding on the lessee and all succes- sors in interest under the lease) not to claim depreciation or an investment credit with respect to such property, (ii) the lease term (as defined in section 168(i)(3)) is not more than 80 percent of the reasonably expected economic life of the property (as determined under section 147(b)), and (iii) the lessee has no option to purchase the property other than at fair market value (as of the time such option is exer- cised). Rules similar to the rules of the preceding sentence shall apply to management con- tracts and similar types of operating agree- ments. (2) Limitation on office space An office shall not be treated as described in a paragraph of subsection (a) unless— (A) the office is located on the premises of a facility described in such a paragraph, and (B) not more than a de minimis amount of the functions to be performed at such office is not directly related to the day-to-day op- erations at such facility. (c) Airports, docks and wharves, mass com- muting facilities and high-speed intercity rail facilities For purposes of subsection (a)— (1) Storage and training facilities Storage or training facilities directly re- lated to a facility described in paragraph (1), (2), (3) or (11) of subsection (a) shall be treated as described in the paragraph in which such fa- cility is described. (2) Exception for certain private facilities Property shall not be treated as described in paragraph (1), (2), (3) or (11) of subsection (a) if such property is described in any of the fol- lowing subparagraphs and is to be used for any private business use (as defined in section 141(b)(6)). (A) Any lodging facility. (B) Any retail facility (including food and beverage facilities) in excess of a size nec- essary to serve passengers and employees at the exempt facility. (C) Any retail facility (other than parking) for passengers or the general public located outside the exempt facility terminal. (D) Any office building for individuals who are not employees of a governmental unit or of the operating authority for the exempt fa- cility. (E) Any industrial park or manufacturing facility. (d) Qualified residential rental project For purposes of this section— (1) In general The term ‘‘qualified residential rental project’’ means any project for residential rental property if, at all times during the qualified project period, such project meets the requirements of subparagraph (A) or (B), whichever is elected by the issuer at the time of the issuance of the issue with respect to such project: (A) 20–50 test The project meets the requirements of this subparagraph if 20 percent or more of the residential units in such project are occu- pied by individuals whose income is 50 per- cent or less of area median gross income. (B) 40–60 test The project meets the requirements of this subparagraph if 40 percent or more of the residential units in such project are occu- pied by individuals whose income is 60 per- cent or less of area median gross income. For purposes of this paragraph, any property shall not be treated as failing to be residential rental property merely because part of the building in which such property is located is used for purposes other than residential rental purposes. (2) Definitions and special rules For purposes of this subsection— (A) Qualified project period The term ‘‘qualified project period’’ means the period beginning on the 1st day on which 10 percent of the residential units in the project are occupied and ending on the latest of— (i) the date which is 15 years after the date on which 50 percent of the residential units in the project are occupied, (ii) the 1st day on which no tax-exempt private activity bond issued with respect to the project is outstanding, or (iii) the date on which any assistance provided with respect to the project under section 8 of the United States Housing Act of 1937 terminates. (B) Income of individuals; area median gross income (i) In general The income of individuals and area me- dian gross income shall be determined by the Secretary in a manner consistent with determinations of lower income families and area median gross income under sec- tion 8 of the United States Housing Act of 1937 (or, if such program is terminated, under such program as in effect imme- diately before such termination). Deter- minations under the preceding sentence shall include adjustments for family size. Subsections (g) and (h) of section 7872 shall Page 655 TITLE 26—INTERNAL REVENUE CODE § 142 not apply in determining the income of in- dividuals under this subparagraph. (ii) Special rule relating to basic housing allowances For purposes of determining income under this subparagraph, payments under section 403 of title 37, United States Code, as a basic pay allowance for housing shall be disregarded with respect to any quali- fied building. (iii) Qualified building For purposes of clause (ii), the term ‘‘qualified building’’ means any building located— (I) in any county in which is located a qualified military installation to which the number of members of the Armed Forces of the United States assigned to units based out of such qualified mili- tary installation, as of June 1, 2008, has increased by not less than 20 percent, as compared to such number on December 31, 2005, or (II) in any county adjacent to a county described in subclause (I). (iv) Qualified military installation For purposes of clause (iii), the term ‘‘qualified military installation’’ means any military installation or facility the number of members of the Armed Forces of the United States assigned to which, as of June 1, 2008, is not less than 1,000. (C) Students Rules similar to the rules of section 42(i)(3)(D) shall apply for purposes of this subsection. (D) Single-room occupancy units A unit shall not fail to be treated as a resi- dential unit merely because such unit is a single-room occupancy unit (within the meaning of section 42). (E) Hold harmless for reductions in area me- dian gross income (i) In general Any determination of area median gross income under subparagraph (B) with re- spect to any project for any calendar year after 2008 shall not be less than the area median gross income determined under such subparagraph with respect to such project for the calendar year preceding the calendar year for which such determina- tion is made. (ii) Special rule for certain census changes In the case of a HUD hold harmless im- pacted project, the area median gross in- come with respect to such project for any calendar year after 2008 (hereafter in this clause referred to as the current calendar year) shall be the greater of the amount determined without regard to this clause or the sum of— (I) the area median gross income deter- mined under the HUD hold harmless pol- icy with respect to such project for cal- endar year 2008, plus (II) any increase in the area median gross income determined under subpara- graph (B) (determined without regard to the HUD hold harmless policy and this subparagraph) with respect to such project for the current calendar year over the area median gross income (as so determined) with respect to such project for calendar year 2008. (iii) HUD hold harmless policy The term ‘‘HUD hold harmless policy’’ means the regulations under which a pol- icy similar to the rules of clause (i) applied to prevent a change in the method of de- termining area median gross income from resulting in a reduction in the area median gross income determined with respect to certain projects in calendar years 2007 and 2008. (iv) HUD hold harmless impacted project The term ‘‘HUD hold harmless impacted project’’ means any project with respect to which area median gross income was de- termined under subparagraph (B) for cal- endar year 2007 or 2008 if such determina- tion would have been less but for the HUD hold harmless policy. (3) Current income determinations For purposes of this subsection— (A) In general The determination of whether the income of a resident of a unit in a project exceeds the applicable income limit shall be made at least annually on the basis of the current in- come of the resident. The preceding sentence shall not apply with respect to any project for any year if during such year no residen- tial unit in the project is occupied by a new resident whose income exceeds the applica- ble income limit. (B) Continuing resident’s income may in- crease above the applicable limit If the income of a resident of a unit in a project did not exceed the applicable income limit upon commencement of such resident’s occupancy of such unit (or as of any prior determination under subparagraph (A)), the income of such resident shall be treated as continuing to not exceed the applicable in- come limit. The preceding sentence shall cease to apply to any resident whose income as of the most recent determination under subparagraph (A) exceeds 140 percent of the applicable income limit if after such deter- mination, but before the next determina- tion, any residential unit of comparable or smaller size in the same project is occupied by a new resident whose income exceeds the applicable income limit. (C) Exception for projects with respect to which affordable housing credit is al- lowed In the case of a project with respect to which credit is allowed under section 42, the second sentence of subparagraph (B) shall be applied by substituting ‘‘building (within the meaning of section 42)’’ for ‘‘project’’. Page 656 TITLE 26—INTERNAL REVENUE CODE § 142 (4) Special rule in case of deep rent skewing (A) In general In the case of any project described in sub- paragraph (B), the 2d sentence of subpara- graph (B) of paragraph (3) shall be applied by substituting— (i) ‘‘170 percent’’ for ‘‘140 percent’’, and (ii) ‘‘any low-income unit in the same project is occupied by a new resident whose income exceeds 40 percent of area median gross income’’ for ‘‘any residential unit of comparable or smaller size in the same project is occupied by a new resident whose income exceeds the applicable in- come limit’’. (B) Deep rent skewed project A project is described in this subparagraph if the owner of the project elects to have this paragraph apply and, at all times during the qualified project period, such project meets the requirements of clauses (i), (ii), and (iii): (i) The project meets the requirements of this clause if 15 percent or more of the low-income units in the project are occu- pied by individuals whose income is 40 per- cent or less of area median gross income. (ii) The project meets the requirements of this clause if the gross rent with respect to each low-income unit in the project does not exceed 30 percent of the applica- ble income limit which applies to individ- uals occupying the unit. (iii) The project meets the requirements of this clause if the gross rent with respect to each low-income unit in the project does not exceed 1⁄2 of the average gross rent with respect to units of comparable size which are not occupied by individuals who meet the applicable income limit. (C) Definitions applicable to subparagraph (B) For purposes of subparagraph (B)— (i) Low-income unit The term ‘‘low-income unit’’ means any unit which is required to be occupied by individuals who meet the applicable in- come limit. (ii) Gross rent The term ‘‘gross rent’’ includes— (I) any payment under section 8 of the United States Housing Act of 1937, and (II) any utility allowance determined by the Secretary after taking into ac- count such determinations under such section 8. (5) Applicable income limit For purposes of paragraphs (3) and (4), the term ‘‘applicable income limit’’ means— (A) the limitation under subparagraph (A) or (B) of paragraph (1) which applies to the project, or (B) in the case of a unit to which para- graph (4)(B)(i) applies, the limitation which applies to such unit. (6) Special rule for certain high cost housing area In the case of a project located in a city hav- ing 5 boroughs and a population in excess of 5,000,000, subparagraph (B) of paragraph (1) shall be applied by substituting ‘‘25 percent’’ for ‘‘40 percent’’. (7) Certification to Secretary The operator of any project with respect to which an election was made under this sub- section shall submit to the Secretary (at such time and in such manner as the Secretary shall prescribe) an annual certification as to whether such project continues to meet the re- quirements of this subsection. Any failure to comply with the provisions of the preceding sentence shall not affect the tax-exempt sta- tus of any bond but shall subject the operator to penalty, as provided in section 6652(j). (e) Facilities for the furnishing of water For purposes of subsection (a)(4), the term ‘‘fa- cilities for the furnishing of water’’ means any facility for the furnishing of water if— (1) the water is or will be made available to members of the general public (including elec- tric utility, industrial, agricultural, or com- mercial users), and (2) either the facility is operated by a gov- ernmental unit or the rates for the furnishing or sale of the water have been established or approved by a State or political subdivision thereof, by an agency or instrumentality of the United States, or by a public service or public utility commission or other similar body of any State or political subdivision thereof. (f) Local furnishing of electric energy or gas For purposes of subsection (a)(8)— (1) In general The local furnishing of electric energy or gas from a facility shall only include furnishing solely within the area consisting of— (A) a city and 1 contiguous county, or (B) 2 contiguous counties. (2) Treatment of certain electric energy trans- mitted outside local area (A) In general A facility shall not be treated as failing to meet the local furnishing requirement of subsection (a)(8) by reason of electricity transmitted pursuant to an order of the Fed- eral Energy Regulatory Commission under section 211 or 213 of the Federal Power Act (as in effect on the date of the enactment of this paragraph) if the portion of the cost of the facility financed with tax-exempt bonds is not greater than the portion of the cost of the facility which is allocable to the local furnishing of electric energy (determined without regard to this paragraph). (B) Special rule for existing facilities In the case of a facility financed with bonds issued before the date of an order re- ferred to in subparagraph (A) which would (but for this subparagraph) cease to be tax- exempt by reason of subparagraph (A), such bonds shall not cease to be tax-exempt bonds (and section 150(b)(4) shall not apply) if, to the extent necessary to comply with sub- paragraph (A)— (i) an escrow to pay principal of, pre- mium (if any), and interest on the bonds is Page 657 TITLE 26—INTERNAL REVENUE CODE § 142 established within a reasonable period after the date such order becomes final, and (ii) bonds are redeemed not later than the earliest date on which such bonds may be redeemed. (3) Termination of future financing For purposes of this section, no bond may be issued as part of an issue described in sub- section (a)(8) with respect to a facility for the local furnishing of electric energy or gas on or after the date of the enactment of this para- graph unless— (A) the facility will— (i) be used by a person who is engaged in the local furnishing of that energy source on January 1, 1997, and (ii) be used to provide service within the area served by such person on January 1, 1997 (or within a county or city any por- tion of which is within such area), or (B) the facility will be used by a successor in interest to such person for the same use and within the same service area as de- scribed in subparagraph (A). (4) Election to terminate tax-exempt bond fi- nancing by certain furnishers (A) In general In the case of a facility financed with bonds issued before the date of the enact- ment of this paragraph which would cease to be tax-exempt by reason of the failure to meet the local furnishing requirement of subsection (a)(8) as a result of a service area expansion, such bonds shall not cease to be tax-exempt bonds (and section 150(b)(4) shall not apply) if the person engaged in such local furnishing by such facility makes an election described in subparagraph (B). (B) Election An election is described in this subpara- graph if it is an election made in such man- ner as the Secretary prescribes, and such person (or its predecessor in interest) agrees that— (i) such election is made with respect to all facilities for the local furnishing of electric energy or gas, or both, by such person, (ii) no bond exempt from tax under sec- tion 103 and described in subsection (a)(8) may be issued on or after the date of the enactment of this paragraph with respect to all such facilities of such person, (iii) any expansion of the service area— (I) is not financed with the proceeds of any exempt facility bond described in subsection (a)(8), and (II) is not treated as a nonqualifying use under the rules of paragraph (2), and (iv) all outstanding bonds used to fi- nance the facilities for such person are re- deemed not later than 6 months after the later of— (I) the earliest date on which such bonds may be redeemed, or (II) the date of the election. (C) Related persons For purposes of this paragraph, the term ‘‘person’’ includes a group of related persons (within the meaning of section 144(a)(3)) which includes such person. (g) Local district heating or cooling facility (1) In general For purposes of subsection (a)(9), the term ‘‘local district heating or cooling facility’’ means property used as an integral part of a local district heating or cooling system. (2) Local district heating or cooling system (A) In general For purposes of paragraph (1), the term ‘‘local district heating or cooling system’’ means any local system consisting of a pipe- line or network (which may be connected to a heating or cooling source) providing hot water, chilled water, or steam to 2 or more users for— (i) residential, commercial, or industrial heating or cooling, or (ii) process steam. (B) Local system For purposes of this paragraph, a local sys- tem includes facilities furnishing heating and cooling to an area consisting of a city and 1 contiguous county. (h) Qualified hazardous waste facilities For purposes of subsection (a)(10), the term ‘‘qualified hazardous waste facility’’ means any facility for the disposal of hazardous waste by incineration or entombment but only if— (1) the facility is subject to final permit re- quirements under subtitle C of title II of the Solid Waste Disposal Act (as in effect on the date of the enactment of the Tax Reform Act of 1986), and (2) the portion of such facility which is to be provided by the issue does not exceed the por- tion of the facility which is to be used by per- sons other than— (A) the owner or operator of such facility, and (B) any related person (within the meaning of section 144(a)(3)) to such owner or oper- ator. (i) High-speed intercity rail facilities (1) In general For purposes of subsection (a)(11), the term ‘‘high-speed intercity rail facilities’’ means any facility (not including rolling stock) for the fixed guideway rail transportation of pas- sengers and their baggage between metropoli- tan statistical areas (within the meaning of section 143(k)(2)(B)) using vehicles that are reasonably expected to be capable of attaining a maximum speed in excess of 150 miles per hour between scheduled stops, but only if such facility will be made available to members of the general public as passengers. (2) Election by nongovernmental owners A facility shall be treated as described in subsection (a)(11) only if any owner of such fa- cility which is not a governmental unit irrev- ocably elects not to claim— (A) any deduction under section 167 or 168, and (B) any credit under this subtitle, Page 658 TITLE 26—INTERNAL REVENUE CODE § 142 with respect to the property to be financed by the net proceeds of the issue. (3) Use of proceeds A bond issued as part of an issue described in subsection (a)(11) shall not be considered an exempt facility bond unless any proceeds not used within a 3-year period of the date of the issuance of such bond are used (not later than 6 months after the close of such period) to re- deem bonds which are part of such issue. (j) Environmental enhancements of hydroelectric generating facilities (1) In general For purposes of subsection (a)(12), the term ‘‘environmental enhancements of hydro- electric generating facilities’’ means prop- erty— (A) the use of which is related to a feder- ally licensed hydroelectric generating facil- ity owned and operated by a governmental unit, and (B) which— (i) protects or promotes fisheries or other wildlife resources, including any fish by-pass facility, fish hatchery, or fisheries enhancement facility, or (ii) is a recreational facility or other im- provement required by the terms and con- ditions of any Federal licensing permit for the operation of such generating facility. (2) Use of proceeds A bond issued as part of an issue described in subsection (a)(12) shall not be considered an exempt facility bond unless at least 80 percent of the net proceeds of the issue of which it is a part are used to finance property described in paragraph (1)(B)(i). (k) Qualified public educational facilities (1) In general For purposes of subsection (a)(13), the term ‘‘qualified public educational facility’’ means any school facility which is— (A) part of a public elementary school or a public secondary school, and (B) owned by a private, for-profit corpora- tion pursuant to a public-private partnership agreement with a State or local educational agency described in paragraph (2). (2) Public-private partnership agreement de- scribed A public-private partnership agreement is described in this paragraph if it is an agree- ment— (A) under which the corporation agrees— (i) to do 1 or more of the following: con- struct, rehabilitate, refurbish, or equip a school facility, and (ii) at the end of the term of the agree- ment, to transfer the school facility to such agency for no additional consider- ation, and (B) the term of which does not exceed the term of the issue to be used to provide the school facility. (3) School facility For purposes of this subsection, the term ‘‘school facility’’ means— (A) any school building, (B) any functionally related and subordi- nate facility and land with respect to such building, including any stadium or other fa- cility primarily used for school events, and (C) any property, to which section 168 ap- plies (or would apply but for section 179), for use in a facility described in subparagraph (A) or (B). (4) Public schools For purposes of this subsection, the terms ‘‘elementary school’’ and ‘‘secondary school’’ have the meanings given such terms by sec- tion 14101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801), as in ef- fect on the date of the enactment of this sub- section. (5) Annual aggregate face amount of tax-ex- empt financing (A) In general An issue shall not be treated as an issue described in subsection (a)(13) if the aggre- gate face amount of bonds issued by the State pursuant thereto (when added to the aggregate face amount of bonds previously so issued during the calendar year) exceeds an amount equal to the greater of— (i) $10 multiplied by the State popu- lation, or (ii) $5,000,000. (B) Allocation rules (i) In general Except as otherwise provided in this sub- paragraph, the State may allocate the amount described in subparagraph (A) for any calendar year in such manner as the State determines appropriate. (ii) Rules for carryforward of unused limi- tation A State may elect to carry forward an unused limitation for any calendar year for 3 calendar years following the calendar year in which the unused limitation arose under rules similar to the rules of section 146(f), except that the only purpose for which the carryforward may be elected is the issuance of exempt facility bonds de- scribed in subsection (a)(13). (l) Qualified green building and sustainable de- sign projects (1) In general For purposes of subsection (a)(14), the term ‘‘qualified green building and sustainable de- sign project’’ means any project which is des- ignated by the Secretary, after consultation with the Administrator of the Environmental Protection Agency, as a qualified green build- ing and sustainable design project and which meets the requirements of clauses (i), (ii), (iii), and (iv) of paragraph (4)(A). (2) Designations (A) In general Within 60 days after the end of the applica- tion period described in paragraph (3)(A), the Secretary, after consultation with the Ad- ministrator of the Environmental Protec- Page 659 TITLE 26—INTERNAL REVENUE CODE § 142 tion Agency, shall designate qualified green building and sustainable design projects. At least one of the projects designated shall be located in, or within a 10-mile radius of, an empowerment zone as designated pursuant to section 1391, and at least one of the projects designated shall be located in a rural State. No more than one project shall be designated in a State. A project shall not be designated if such project includes a sta- dium or arena for professional sports exhibi- tions or games. (B) Minimum conservation and technology innovation objectives The Secretary, after consultation with the Administrator of the Environmental Protec- tion Agency, shall ensure that, in the aggre- gate, the projects designated shall— (i) reduce electric consumption by more than 150 megawatts annually as compared to conventional generation, (ii) reduce daily sulfur dioxide emissions by at least 10 tons compared to coal gen- eration power, (iii) expand by 75 percent the domestic solar photovoltaic market in the United States (measured in megawatts) as com- pared to the expansion of that market from 2001 to 2002, and (iv) use at least 25 megawatts of fuel cell energy generation. (3) Limited designations A project may not be designated under this subsection unless— (A) the project is nominated by a State or local government within 180 days of the en- actment of this subsection, and (B) such State or local government pro- vides written assurances that the project will satisfy the eligibility criteria described in paragraph (4). (4) Application (A) In general A project may not be designated under this subsection unless the application for such designation includes a project proposal which describes the energy efficiency, re- newable energy, and sustainable design fea- tures of the project and demonstrates that the project satisfies the following eligibility criteria: (i) Green building and sustainable design At least 75 percent of the square footage of commercial buildings which are part of the project is registered for United States Green Building Council’s LEED certifi- cation and is reasonably expected (at the time of the designation) to receive such certification. For purposes of determining LEED certification as required under this clause, points shall be credited by using the following: (I) For wood products, certification under the Sustainable Forestry Initia- tive Program and the American Tree Farm System. (II) For renewable wood products, as credited for recycled content otherwise provided under LEED certification. (III) For composite wood products, cer- tification under standards established by the American National Standards Insti- tute, or such other voluntary standards as published in the Federal Register by the Administrator of the Environmental Protection Agency. (ii) Brownfield redevelopment The project includes a brownfield site as defined by section 101(39) of the Com- prehensive Environmental Response, Com- pensation, and Liability Act of 1980 (42 U.S.C. 9601), including a site described in subparagraph (D)(ii)(II)(aa) thereof. (iii) State and local support The project receives specific State or local government resources which will sup- port the project in an amount equal to at least $5,000,000. For purposes of the pre- ceding sentence, the term ‘‘resources’’ in- cludes tax abatement benefits and con- tributions in kind. (iv) Size The project includes at least one of the following: (I) At least 1,000,000 square feet of building. (II) At least 20 acres. (v) Use of tax benefit The project proposal includes a descrip- tion of the net benefit of the tax-exempt financing provided under this subsection which will be allocated for financing of one or more of the following: (I) The purchase, construction, inte- gration, or other use of energy effi- ciency, renewable energy, and sustain- able design features of the project. (II) Compliance with certification standards cited under clause (i). (III) The purchase, remediation, and foundation construction and preparation of the brownfields site. (vi) Prohibited facilities An issue shall not be treated as an issue described in subsection (a)(14) if any pro- ceeds of such issue are used to provide any facility the principal business of which is the sale of food or alcoholic beverages for consumption on the premises. (vii) Employment The project is projected to provide per- manent employment of at least 1,500 full time equivalents (150 full time equivalents in rural States) when completed and con- struction employment of at least 1,000 full time equivalents (100 full time equivalents in rural States). The application shall include an independent analysis which describes the project’s eco- nomic impact, including the amount of pro- jected employment. (B) Project description Each application described in subpara- graph (A) shall contain for each project a de- scription of— Page 660 TITLE 26—INTERNAL REVENUE CODE § 142 (i) the amount of electric consumption reduced as compared to conventional con- struction, (ii) the amount of sulfur dioxide daily emissions reduced compared to coal gen- eration, (iii) the amount of the gross installed ca- pacity of the project’s solar photovoltaic capacity measured in megawatts, and (iv) the amount, in megawatts, of the project’s fuel cell energy generation. (5) Certification of use of tax benefit No later than 30 days after the completion of the project, each project must certify to the Secretary that the net benefit of the tax-ex- empt financing was used for the purposes de- scribed in paragraph (4). (6) Definitions For purposes of this subsection— (A) Rural State The term ‘‘rural State’’ means any State which has— (i) a population of less than 4,500,000 ac- cording to the 2000 census, (ii) a population density of less than 150 people per square mile according to the 2000 census, and (iii) increased in population by less than half the rate of the national increase be- tween the 1990 and 2000 censuses. (B) Local government The term ‘‘local government’’ has the meaning given such term by section 1393(a)(5). (C) Net benefit of tax-exempt financing The term ‘‘net benefit of tax-exempt fi- nancing’’ means the present value of the in- terest savings (determined by a calculation established by the Secretary) which result from the tax-exempt status of the bonds. (7) Aggregate face amount of tax-exempt fi- nancing (A) In general An issue shall not be treated as an issue described in subsection (a)(14) if the aggre- gate face amount of bonds issued by the State or local government pursuant thereto for a project (when added to the aggregate face amount of bonds previously so issued for such project) exceeds an amount des- ignated by the Secretary as part of the des- ignation. (B) Limitation on amount of bonds The Secretary may not allocate authority to issue qualified green building and sustain- able design project bonds in an aggregate face amount exceeding $2,000,000,000. (8) Termination Subsection (a)(14) shall not apply with re- spect to any bond issued after September 30, 2012. (9) Treatment of current refunding bonds Paragraphs (7)(B) and (8) shall not apply to any bond (or series of bonds) issued to refund a bond issued under subsection (a)(14) before October 1, 2012, if— (A) the average maturity date of the issue of which the refunding bond is a part is not later than the average maturity date of the bonds to be refunded by such issue, (B) the amount of the refunding bond does not exceed the outstanding amount of the refunded bond, and (C) the net proceeds of the refunding bond are used to redeem the refunded bond not later than 90 days after the date of the issuance of the refunding bond. For purposes of subparagraph (A), average ma- turity shall be determined in accordance with section 147(b)(2)(A). (m) Qualified highway or surface freight transfer facilities (1) In general For purposes of subsection (a)(15), the term ‘‘qualified highway or surface freight transfer facilities’’ means— (A) any surface transportation project which receives Federal assistance under title 23, United States Code (as in effect on the date of the enactment of this subsection), (B) any project for an international bridge or tunnel for which an international entity authorized under Federal or State law is re- sponsible and which receives Federal assist- ance under title 23, United States Code (as so in effect), or (C) any facility for the transfer of freight from truck to rail or rail to truck (including any temporary storage facilities directly re- lated to such transfers) which receives Fed- eral assistance under either title 23 or title 49, United States Code (as so in effect). (2) National limitation on amount of tax-ex- empt financing for facilities (A) National limitation The aggregate amount allocated by the Secretary of Transportation under subpara- graph (C) shall not exceed $30,000,000,000. (B) Enforcement of national limitation An issue shall not be treated as an issue described in subsection (a)(15) if the aggre- gate face amount of bonds issued pursuant to such issue for any qualified highway or surface freight transfer facility (when added to the aggregate face amount of bonds pre- viously so issued for such facility) exceeds the amount allocated to such facility under subparagraph (C). (C) Allocation by Secretary of Transportation The Secretary of Transportation shall al- locate the amount described in subparagraph (A) among qualified highway or surface freight transfer facilities in such manner as the Secretary determines appropriate. (3) Expenditure of proceeds An issue shall not be treated as an issue de- scribed in subsection (a)(15) unless at least 95 percent of the net proceeds of the issue is ex- pended for qualified highway or surface freight transfer facilities within the 5-year period be- ginning on the date of issuance. If at least 95 percent of such net proceeds is not expended within such 5-year period, an issue shall be Page 661 TITLE 26—INTERNAL REVENUE CODE § 142 treated as continuing to meet the require- ments of this paragraph if the issuer uses all unspent proceeds of the issue to redeem bonds of the issue within 90 days after the end of such 5-year period. The Secretary, at the re- quest of the issuer, may extend such 5-year pe- riod if the issuer establishes that any failure to meet such period is due to circumstances beyond the control of the issuer. (4) Exception for current refunding bonds Paragraph (2) shall not apply to any bond (or series of bonds) issued to refund a bond issued under subsection (a)(15) if— (A) the average maturity date of the issue of which the refunding bond is a part is not later than the average maturity date of the bonds to be refunded by such issue, (B) the amount of the refunding bond does not exceed the outstanding amount of the refunded bond, and (C) the refunded bond is redeemed not later than 90 days after the date of the issuance of the refunding bond. For purposes of subparagraph (A), average ma- turity shall be determined in accordance with section 147(b)(2)(A). (n) Qualified broadband project (1) In general For purposes of subsection (a)(16), the term ‘‘qualified broadband project’’ means any project which— (A) is designed to provide broadband serv- ice solely to 1 or more census block groups in which more than 50 percent of residential households do not have access to fixed, ter- restrial broadband service which delivers at least 25 megabits per second downstream and at least 3 megabits service upstream, and (B) results in internet access to residential locations, commercial locations, or a com- bination of residential and commercial loca- tions at speeds not less than 100 megabits per second for downloads and 20 megabits for second for uploads, but only if at least 90 percent of the locations provided such access under the project are locations where, before the project, a broadband service provider— (i) did not provide service, or (ii) did not provide service meeting the minimum speed requirements described in subparagraph (A). (2) Notice to broadband providers A project shall not be treated as a qualified broadband project unless, before the issue date of any issue the proceeds of which are to be used to fund the project, the issuer— (A) notifies each broadband service pro- vider providing broadband service in the area within which broadband services are to be provided under the project of the project and its intended scope, (B) includes in such notice a request for in- formation from each such provider with re- spect to the provider’s ability to deploy, manage, and maintain a broadband network capable of providing gigabit capable Internet access to residential or commercial loca- tions, and (C) allows each such provider at least 90 days to respond to such notice and request. (o) Qualified carbon dioxide capture facility (1) In general For purposes of subsection (a)(17), the term ‘‘qualified carbon dioxide capture facility’’ means— (A) the eligible components of an indus- trial carbon dioxide facility, and (B) a direct air capture facility (as defined in section 45Q(e)(3)). (2) Definitions For purposes of this subsection: (A) Eligible component (i) In general The term ‘‘eligible component’’ means any equipment which is installed in an in- dustrial carbon dioxide facility that satis- fies the requirements under paragraph (3) and which is— (I) used for the purpose of capture, treatment and purification, compression, transportation, or on-site storage of car- bon dioxide produced by the industrial carbon dioxide facility, or (II) integral or functionally related and subordinate to a process which con- verts a solid or liquid product from coal, petroleum residue, biomass, or other ma- terials which are recovered for their en- ergy or feedstock value into a synthesis gas composed primarily of carbon diox- ide and hydrogen for direct use or subse- quent chemical or physical conversion. (ii) Definitions For purposes of this subparagraph— (I) Biomass (aa) In general The term ‘‘biomass’’ means any— (AA) agricultural or plant waste, (BB) byproduct of wood or paper mill operations, including lignin in spent pulping liquors, and (CC) other products of forestry maintenance. (bb) Exclusion The term ‘‘biomass’’ does not include paper which is commonly recycled. (II) Coal The term ‘‘coal’’ means anthracite, bi- tuminous coal, subbituminous coal, lig- nite, and peat. (B) Industrial carbon dioxide facility (i) In general Except as provided in clause (ii), the term ‘‘industrial carbon dioxide facility’’ means a facility that emits carbon dioxide (including from any fugitive emissions source) that is created as a result of any of the following processes: (I) Fuel combustion. (II) Gasification. (III) Bioindustrial. (IV) Fermentation. Page 662 TITLE 26—INTERNAL REVENUE CODE § 142 (V) Any manufacturing industry relat- ing to— (aa) chemicals, (bb) fertilizers, (cc) glass, (dd) steel, (ee) petroleum residues, (ff) forest products, (gg) agriculture, including feedlots and dairy operations, and (hh) transportation grade liquid fuels. (ii) Exceptions For purposes of clause (i), an industrial carbon dioxide facility shall not include— (I) any geological gas facility, or (II) any air separation unit that— (aa) does not qualify as gasification equipment, or (bb) is not a necessary component of an oxy-fuel combustion process. (iii) Definitions For purposes of this subparagraph— (I) Petroleum residue The term ‘‘petroleum residue’’ means the carbonized product of high-boiling hydrocarbon fractions obtained in petro- leum processing. (II) Geological gas facility The term ‘‘geological gas facility’’ means a facility that— (aa) produces a raw product con- sisting of gas or mixed gas and liquid from a geological formation, (bb) transports or removes impurities from such product, or (cc) separates such product into its constituent parts. (3) Special rule for facilities with less than 65 percent capture and storage percentage (A) In general Subject to subparagraph (B), the eligible components of an industrial carbon dioxide facility satisfies the requirements of this paragraph if such eligible components are designed to have a capture and storage per- centage (as determined under subparagraph (C)) that is equal to or greater than 65 per- cent. (B) Exception In the case of an industrial carbon dioxide facility designed with a capture and storage percentage that is less than 65 percent, the percentage of the cost of the eligible compo- nents installed in such facility that may be financed with tax-exempt bonds may not be greater than the designed capture and stor- age percentage. (C) Capture and storage percentage (i) In general Subject to clause (ii), the capture and storage percentage shall be an amount, ex- pressed as a percentage, equal to the quotient of— (I) the total metric tons of carbon di- oxide designed to be annually captured, transported, and injected into— (aa) a facility for geologic storage, or (bb) an enhanced oil or gas recovery well followed by geologic storage, di- vided by (II) the total metric tons of carbon di- oxide which would otherwise be released into the atmosphere each year as indus- trial emission of greenhouse gas if the eligible components were not installed in the industrial carbon dioxide facility. (ii) Limited application of eligible compo- nents In the case of eligible components that are designed to capture carbon dioxide solely from specific sources of emissions or portions thereof within an industrial car- bon dioxide facility, the capture and stor- age percentage under this subparagraph shall be determined based only on such specific sources of emissions or portions thereof. (4) Regulations The Secretary shall issue such regulations or other guidance as are necessary to carry out the provisions of this subsection, includ- ing methods for determining costs attrib- utable to an eligible component for purposes of paragraph (3)(A). (Added Pub. L. 99–514, title XIII, § 1301(b), Oct. 22, 1986, 100 Stat. 2606; amended Pub. L. 100–647, title I, § 1013(a)(1), (39), title VI, § 6180(a)–(b)(2), Nov. 10, 1988, 102 Stat. 3537, 3544, 3727, 3728; Pub. L. 101–239, title VII, §§ 7108(e)(3), (n)(1), 7816(s)(1), Dec. 19, 1989, 103 Stat. 2313, 2318, 2423; Pub. L. 102–486, title XIX, §§ 1919(a), 1921(a), (b)(1), (2), Oct. 24, 1992, 106 Stat. 3025, 3027, 3028; Pub. L. 104–188, title I, §§ 1608(a), 1704(j)(7), Aug. 20, 1996, 110 Stat. 1840, 1882; Pub. L. 105–206, title VI, § 6023(5), July 22, 1998, 112 Stat. 825; Pub. L. 107–16, title IV, § 422(a), (b), June 7, 2001, 115 Stat. 65; Pub. L. 108–357, title VII, § 701(a), (b), Oct. 22, 2004, 118 Stat. 1536; Pub. L. 109–59, title XI, § 11143(a), (b), Aug. 10, 2005, 119 Stat. 1963; Pub. L. 109–222, title II, § 209(b)(2), May 17, 2006, 120 Stat. 352; Pub. L. 110–289, div. C, title I, §§ 3005(a), 3008(a)–(c), 3009(a), 3010(a), July 30, 2008, 122 Stat. 2885–2888; Pub. L. 110–343, div. B, title III, § 307(a), (b), Oct. 3, 2008, 122 Stat. 3849; Pub. L. 111–5, div. B, title I, § 1504(a), Feb. 17, 2009, 123 Stat. 355; Pub. L. 115–141, div. U, title IV, § 401(a)(47), Mar. 23, 2018, 132 Stat. 1186; Pub. L. 117–58, div. H, title IV, §§ 80401(a), (b), 80402(a), (b), 80403(a), Nov. 15, 2021, 135 Stat. 1330, 1331, 1335; Pub. L. 117–169, title I, § 13104(a)(2)(B), Aug. 16, 2022, 136 Stat. 1925.) Editorial Notes REFERENCES IN TEXT Section 8 of the United States Housing Act of 1937, re- ferred to in subsec. (d)(2)(A)(iii), (B)(i), (4)(C)(ii), is clas- sified to section 1437f of Title 42, The Public Health and Welfare. Sections 211 and 213 of the Federal Power Act, re- ferred to in subsec. (f)(2)(A), are classified to sections 824j and 824l, respectively, of Title 16, Conservation. The date of the enactment of this paragraph, referred to in subsec. (f)(2)(A), is the date of enactment of Pub. L. 102–486, which was approved Oct. 24, 1992. The date of the enactment of this paragraph, referred to in subsec. (f)(3), (4)(A), (B)(ii), is the date of enact- Page 663 TITLE 26—INTERNAL REVENUE CODE § 142 ment of Pub. L. 104–188, which was approved Aug. 20, 1996. The Solid Waste Disposal Act, referred to in subsec. (h)(1), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Solid Waste Dis- posal Act is classified generally to subchapter III (§ 6921 et seq.) of chapter 82 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of Title 42 and Tables. The date of the enactment of the Tax Reform Act of 1986, referred to in subsec. (h)(1), is the date of enact- ment of Pub. L. 99–514, which was approved Oct. 22, 1986. Section 14101 of the Elementary and Secondary Edu- cation Act of 1965, referred to in subsec. (k)(4), is sec- tion 14101 of Pub. L. 89–10, which was classified to sec- tion 8801 of Title 20, Education, prior to repeal by Pub. L. 107–110, title X, § 1011(5)(C), Jan. 8, 2002, 115 Stat. 1986. The date of the enactment of this subsection, referred to in subsec. (k)(4), means the date of enactment of Pub. L. 107–16, which was approved June 7, 2001. The enactment of this subsection, referred to in sub- sec. (l)(3)(A), probably means the date of enactment of Pub. L. 108–357, which was approved Oct. 22, 2004. The date of the enactment of this subsection, referred to in subsec. (m)(1)(A), is the date of enactment of Pub. L. 109–59, which was approved Aug. 10, 2005. PRIOR PROVISIONS A prior section 142, act Aug. 16, 1954, ch. 736, 68A Stat. 40, enumerated individuals not eligible for standard de- duction, prior to repeal by Pub. L. 95–30, title I, § 101(d)(1), May 23, 1977, 91 Stat. 133, applicable to tax- able years beginning after Dec. 31, 1976. AMENDMENTS 2022—Subsec. (o)(1)(B). Pub. L. 117–169 substituted ‘‘section 45Q(e)(3)’’ for ‘‘section 45Q(e)(1)’’. 2021—Subsec. (a)(16). Pub. L. 117–58, § 80401(a), added par. (16). Subsec. (a)(17). Pub. L. 117–58, § 80402(a), added par. (17). Subsec. (m)(2)(A). Pub. L. 117–58, § 80403(a), sub- stituted ‘‘$30,000,000,000’’ for ‘‘$15,000,000,000’’. Subsec. (n). Pub. L. 117–58, § 80401(b), added subsec. (n). Subsec. (o). Pub. L. 117–58, § 80402(b), added subsec. (o). 2018—Subsec. (d)(2)(C). Pub. L. 115–141 inserted ‘‘sec- tion’’ before ‘‘42(i)(3)(D)’’. 2009—Subsec. (i)(1). Pub. L. 111–5 substituted ‘‘be ca- pable of attaining a maximum speed in excess of’’ for ‘‘operate at speeds in excess of’’. 2008—Subsec. (d)(2)(B). Pub. L. 110–289, § 3005(a), des- ignated existing provisions as cl. (i), inserted heading, and added cls. (ii) to (iv). Subsec. (d)(2)(C). Pub. L. 110–289, § 3008(b), added sub- par. (C). Subsec. (d)(2)(D). Pub. L. 110–289, § 3008(c), added sub- par. (D). Subsec. (d)(2)(E). Pub. L. 110–289, § 3009(a), added sub- par. (E). Subsec. (d)(3)(A). Pub. L. 110–289, § 3010(a), inserted at end ‘‘The preceding sentence shall not apply with re- spect to any project for any year if during such year no residential unit in the project is occupied by a new resi- dent whose income exceeds the applicable income limit.’’ Subsec. (d)(3)(C). Pub. L. 110–289, § 3008(a), added sub- par. (C). Subsec. (l)(8). Pub. L. 110–343, § 307(a), substituted ‘‘September 30, 2012’’ for ‘‘September 30, 2009’’. Subsec. (l)(9). Pub. L. 110–343, § 307(b), substituted ‘‘October 1, 2012’’ for ‘‘October 1, 2009’’. 2006—Subsec. (d)(2)(B). Pub. L. 109–222 substituted ‘‘Subsections (g) and (h) of section 7872’’ for ‘‘Section 7872(g)’’. 2005—Subsec. (a)(15). Pub. L. 109–59, § 11143(a), added par. (15). Subsec. (m). Pub. L. 109–59, § 11143(b), added subsec. (m). 2004—Subsec. (a)(14). Pub. L. 108–357, § 701(a), added par. (14). Subsec. (l). Pub. L. 108–357, § 701(b), added subsec. (l). 2001—Subsec. (a)(13). Pub. L. 107–16, § 422(a), added par. (13). Subsec. (k). Pub. L. 107–16, § 422(b), added subsec. (k). 1998—Subsec. (f)(3)(A)(ii). Pub. L. 105–206 struck out comma after ‘‘1997’’. 1996—Subsec. (b)(1)(A). Pub. L. 104–188, § 1704(j)(7), pro- vided that section 1921(b)(2) of Pub. L. 102–486 shall be applied as if a comma appeared after ‘‘(2)’’ in the mate- rial proposed to be stricken. See 1992 Amendment note below. Subsec. (f)(3), (4). Pub. L. 104–188, § 1608(a), added pars. (3) and (4). 1992—Subsec. (a)(12). Pub. L. 102–486, § 1921(a), added par. (12). Subsec. (b)(1)(A). Pub. L. 102–486, § 1921(b)(2), which di- rected the substitution of ‘‘(2), (3), or (12)’’ for ‘‘(2) or (3)’’, was executed by making the substitution for ‘‘(2), or (3)’’. See 1996 Amendment note above. Subsec. (f). Pub. L. 102–486, § 1919(a), amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: ‘‘For purposes of subsection (a)(8), the local furnishing of electric energy or gas from a facility shall only include furnishing solely within the area con- sisting of— ‘‘(1) a city and 1 contiguous county, or ‘‘(2) 2 contiguous counties.’’ Subsec. (j). Pub. L. 102–486, § 1921(b)(1), added subsec. (j). 1989—Subsec. (d)(2)(B). Pub. L. 101–239, § 7108(e)(3), in- serted at end ‘‘Section 7872(g) shall not apply in deter- mining the income of individuals under this subpara- graph.’’ Subsec. (d)(4)(B)(iii). Pub. L. 101–239, § 7108(n)(1), sub- stituted ‘‘exceed 1⁄2’’ for ‘‘exceed 1⁄3’’. Subsec. (i)(1). Pub. L. 101–239, § 7816(s)(1), inserted heading ‘‘In general’’. 1988—Subsec. (a)(11). Pub. L. 100–647, § 6180(a), added par. (11). Subsec. (b)(1)(B)(ii). Pub. L. 100–647, § 1013(a)(39), in- serted ‘‘section’’ before ‘‘168(i)(3)’’. Subsec. (c). Pub. L. 100–647, § 6180(b)(2), substituted ‘‘mass commuting facilities and high-speed intercity rail facilities’’ for ‘‘and mass commuting facilities’’ in heading and substituted ‘‘paragraph (1), (2), (3) or (11) of subsection (a)’’ for ‘‘paragraph (1), (2), or (3) of sub- section (a)’’ in par. (1) and in introductory text of par. (2). Subsec. (d)(4)(B)(iii). Pub. L. 100–647, § 1013(a)(1), sub- stituted ‘‘average gross rent’’ for ‘‘average rent’’. Subsec. (i). Pub. L. 100–647, § 6180(b)(1), added subsec. (i). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Amendment by Pub. L. 117–169 applicable to facilities or equipment the construction of which begins after Aug. 16, 2022, see section 13104(i)(2) of Pub. L. 117–169, set out in a note under section 45Q of this title. EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 117–58, div. H, title IV, § 80401(d), Nov. 15, 2021, 135 Stat. 1331, provided that: ‘‘The amendments made by this section [amending this section and section 146 of this title] shall apply to obligations issued in cal- endar years beginning after the date of the enactment of this Act [Nov. 15, 2021].’’ Amendment by section 80402(a), (b) of Pub. L. 117–58 applicable to obligations issued after Dec. 31, 2021, see section 80402(f) of Pub. L. 117–58, set out as a note under section 45Q of this title. Pub. L. 117–58, div. H, title IV, § 80403(b), Nov. 15, 2021, 135 Stat. 1335, provided that: ‘‘The amendment made by this section [amending this section] shall apply to Page 664 TITLE 26—INTERNAL REVENUE CODE § 142 bonds issued after the date of the enactment of this Act [Nov. 15, 2021].’’ EFFECTIVE DATE OF 2009 AMENDMENT Pub. L. 111–5, div. B, title I, § 1504(b), Feb. 17, 2009, 123 Stat. 355, provided that: ‘‘The amendment made by this section [amending this section] shall apply to obliga- tions issued after the date of the enactment of this Act [Feb. 17, 2009].’’ EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–289, div. C, title I, § 3005(b), July 30, 2008, 122 Stat. 2885, as amended by Pub. L. 112–240, title III, § 303(a), Jan. 2, 2013, 126 Stat. 2329; Pub. L. 113–295, div. A, title I, § 113(a), Dec. 19, 2014, 128 Stat. 4014; Pub. L. 114–113, div. Q, title I, § 132(a), Dec. 18, 2015, 129 Stat. 3055, provided that: ‘‘The amendments made by this section [amending this section] shall apply to— ‘‘(1) determinations made after the date of the en- actment of this Act [July 30, 2008], in the case of any qualified building (as defined in section 142(d)(2)(B)(iii) of the Internal Revenue Code of 1986)— ‘‘(A) with respect to which housing credit dollar amounts have been allocated on or before the date of the enactment of this Act [July 30, 2008], or ‘‘(B) with respect to buildings placed in service before such date of enactment, to the extent para- graph (1) of section 42(h) of such Code does not apply to such building by reason of paragraph (4) thereof, but only with respect to bonds issued be- fore such date of enactment, and ‘‘(2) determinations made after the date of enact- ment of this Act [July 30, 2008], in the case of quali- fied buildings (as so defined)— ‘‘(A) with respect to which housing credit dollar amounts are allocated after the date of the enact- ment of this Act [July 30, 2008], or ‘‘(B) with respect to which buildings placed in service after the date of enactment of this Act [July 30, 2008], to the extent paragraph (1) of section 42(h) of such Code does not apply to such building by reason of paragraph (4) thereof, but only with re- spect to bonds issued after such date of enact- ment.’’ [Pub. L. 114–113, div. Q, title I, § 132(b), Dec. 18, 2015, 129 Stat. 3055, provided that: ‘‘The amendments made by this section [amending section 3005(b) of Pub. L. 110–289, set out above] shall take effect as if included in the enactment of section 3005 of the Housing Assistance Tax Act of 2008 [div. C of Pub. L. 110–289].’’] [Pub. L. 113–295, div. A, title I, § 113(b), Dec. 19, 2014, 128 Stat. 4014, provided that: ‘‘The amendment made by this section [amending section 3005(b) of Pub. L. 110–289, set out above] shall take effect as if included in the enactment of section 3005 of the Housing Assistance Tax Act of 2008 [div. C of Pub. L. 110–289].’’] [Pub. L. 112–240, title III, § 303(b), Jan. 2, 2013, 126 Stat. 2329, provided that: ‘‘The amendment made by this sec- tion [amending section 3005(b) of Pub. L. 110–289, set out above] shall take effect as if included in the enact- ment of section 3005 of the Housing Assistance Tax Act of 2008 [div. C of Pub. L. 110–289].’’] Pub. L. 110–289, div. C, title I, § 3008(d), July 30, 2008, 122 Stat. 2887, provided that: ‘‘The amendments made by this section [amending this section] shall apply to determinations of the status of qualified residential rental projects for periods beginning after the date of the enactment of this Act [July 30, 2008], with respect to bonds issued before, on, or after such date.’’ Pub. L. 110–289, div. C, title I, § 3009(b), July 30, 2008, 122 Stat. 2888, provided that: ‘‘The amendment made by this section [amending this section] shall apply to de- terminations of area median gross income for calendar years after 2008.’’ Pub. L. 110–289, div. C, title I, § 3010(b), July 30, 2008, 122 Stat. 2888, provided that: ‘‘The amendment made by this section [amending this section] shall apply to years ending after the date of the enactment of this Act [July 30, 2008].’’ EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–222, title II, § 209(c), May 17, 2006, 120 Stat. 352, provided that: ‘‘The amendment made by this sec- tion [amending this section and section 7872 of this title] shall apply to calendar years beginning after De- cember 31, 2005, with respect to loans made before, on, or after such date.’’ EFFECTIVE DATE OF 2005 AMENDMENT Pub. L. 109–59, title XI, § 11143(d), Aug. 10, 2005, 119 Stat. 1965, provided that: ‘‘The amendments made by this section [amending this section and section 146 of this title] apply to bonds issued after the date of the enactment of this Act [Aug. 10, 2005].’’ EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108–357, title VII, § 701(e), Oct. 22, 2004, 118 Stat. 1540, provided that: ‘‘The amendments made by this section [amending this section and section 146 of this title] shall apply to bonds issued after December 31, 2004.’’ EFFECTIVE DATE OF 2001 AMENDMENT Pub. L. 107–16, title IV, § 422(f), June 7, 2001, 115 Stat. 66, provided that: ‘‘The amendments made by this sec- tion [amending this section and sections 146 and 147 of this title] shall apply to bonds issued after December 31, 2001.’’ EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–486, title XIX, § 1919(b), Oct. 24, 1992, 106 Stat. 3026, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to obligations issued before, on, or after the date of the enactment of this Act [Oct. 24, 1992].’’ Pub. L. 102–486, title XIX, § 1921(c), Oct. 24, 1992, 106 Stat. 3028, provided that: ‘‘The amendments made by this section [amending this section and section 146 of this title] shall apply to bonds issued after the date of the enactment of this Act [Oct. 24, 1992].’’ EFFECTIVE DATE OF 1989 AMENDMENT Amendment by section 7108(e)(3), (n)(1) of Pub. L. 101–239 applicable, except as otherwise provided, to de- terminations under section 42 of this title with respect to housing credit dollar amounts allocated from State housing credit ceilings for calendar years after 1989, see section 7108(r) of Pub. L. 101–239, set out as a note under section 42 of this title. Amendment by section 7816(s) of Pub. L. 101–239 effec- tive, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by section 1013(a)(1), (39) of Pub. L. 100–647 effective, except as otherwise provided, as if in- cluded in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title. Pub. L. 100–647, title VI, § 6180(c), Nov. 10, 1988, 102 Stat. 3728, provided that: ‘‘The amendments made by this section [amending sections 142, 146, and 147 of this title] shall apply to bonds issued after the date of en- actment of this Act [Nov. 10, 1988].’’ ACCOUNTABILITY Pub. L. 108–357, title VII, § 701(d), Oct. 22, 2004, 118 Stat. 1539, as amended by Pub. L. 110–343, div. B, title III, § 307(c), Oct. 3, 2008, 122 Stat. 3849, provided that: ‘‘Each issuer shall maintain, on behalf of each project, an interest bearing reserve account equal to 1 percent of the net proceeds of any bond issued under this sec- tion for such project. Not later than 5 years after the date of issuance of the last issue with respect to such Page 665 TITLE 26—INTERNAL REVENUE CODE § 143 project, the Secretary of the Treasury, after consulta- tion with the Administrator of the Environmental Pro- tection Agency, shall determine whether the project fi- nanced with such bonds has substantially complied with the terms and conditions described in section 142(l)(4) of the Internal Revenue Code of 1986 (as added by this section). If the Secretary, after such consulta- tion, certifies that the project has substantially com- plied with such terms and conditions and meets the commitments set forth in the application for such project described in section 142(l)(4) of such Code, amounts in the reserve account, including all interest, shall be released to the project. If the Secretary deter- mines that the project has not substantially complied with such terms and conditions, amounts in the reserve account, including all interest, shall be paid to the United States Treasury.’’ NO INFERENCE WITH RESPECT TO OUTSTANDING BONDS FROM USE OF TERM ‘‘PERSON’’ Pub. L. 104–188, title I, § 1608(b), Aug. 20, 1996, 110 Stat. 1841, provided that: ‘‘The use of the term ‘person’ in section 142(f)(3) of the Internal Revenue Code of 1986, as added by subsection (a), shall not be construed to affect the tax-exempt status of interest on any bonds issued before the date of the enactment of this Act [Aug. 20, 1996].’’ TAX-EXEMPT BONDS FOR SALE OF ALASKA POWER ADMINISTRATION FACILITY Pub. L. 104–188, title I, § 1804, Aug. 20, 1996, 110 Stat. 1893, provided that: ‘‘Sections 142(f)(3) (as added by sec- tion 1608) and 147(d) of the Internal Revenue Code of 1986 shall not apply in determining whether any private activity bond issued after the date of the enactment of this Act [Aug. 20, 1996] and used to finance the acquisi- tion of the Snettisham hydroelectric project from the Alaska Power Administration is a qualified bond for purposes of such Code.’’ § 143. Mortgage revenue bonds: qualified mort- gage bond and qualified veterans’ mortgage bond (a) Qualified mortgage bond (1) Qualified mortgage bond defined For purposes of this title, the term ‘‘quali- fied mortgage bond’’ means a bond which is issued as part of a qualified mortgage issue. (2) Qualified mortgage issue defined (A) Definition For purposes of this title, the term ‘‘quali- fied mortgage issue’’ means an issue by a State or political subdivision thereof of 1 or more bonds, but only if— (i) all proceeds of such issue (exclusive of issuance costs and a reasonably required reserve) are to be used to finance owner- occupied residences, (ii) such issue meets the requirements of subsections (c), (d), (e), (f), (g), (h), (i), and (m)(7), (iii) such issue does not meet the private business tests of paragraphs (1) and (2) of section 141(b), and (iv) except as provided in subparagraph (D)(ii), repayments of principal on financ- ing provided by the issue are used not later than the close of the 1st semiannual period beginning after the date the prepayment (or complete repayment) is received to re- deem bonds which are part of such issue. Clause (iv) shall not apply to amounts re- ceived within 10 years after the date of issuance of the issue (or, in the case of re- funding bond, the date of issuance of the original bond). (B) Good faith effort to comply with mort- gage eligibility requirements An issue which fails to meet 1 or more of the requirements of subsections (c), (d), (e), (f), and (i) shall be treated as meeting such requirements if— (i) the issuer in good faith attempted to meet all such requirements before the mortgages were executed, (ii) 95 percent or more of the proceeds de- voted to owner-financing was devoted to residences with respect to which (at the time the mortgages were executed) all such requirements were met, and (iii) any failure to meet the require- ments of such subsections is corrected within a reasonable period after such fail- ure is first discovered. (C) Good faith effort to comply with other re- quirements An issue which fails to meet 1 or more of the requirements of subsections (g), (h), and (m)(7) shall be treated as meeting such re- quirements if— (i) the issuer in good faith attempted to meet all such requirements, and (ii) any failure to meet such require- ments is due to inadvertent error after taking reasonable steps to comply with such requirements. (D) Proceeds must be used within 42 months of date of issuance (i) In general Except as otherwise provided in this sub- paragraph, an issue shall not meet the re- quirement of subparagraph (A)(i) unless— (I) all proceeds of the issue required to be used to finance owner-occupied resi- dences are so used within the 42-month period beginning on the date of issuance of the issue (or, in the case of a refund- ing bond, within the 42-month period be- ginning on the date of issuance of the original bond) or, to the extent not so used within such period, are used within such period to redeem bonds which are part of such issue, and (II) no portion of the proceeds of the issue are used to make or finance any loan (other than a loan which is a non- purpose investment within the meaning of section 148(f)(6)(A)) after the close of such period. (ii) Exception Clause (i) (and clause (iv) of subpara- graph (A)) shall not be construed to re- quire amounts of less than $250,000 to be used to redeem bonds. The Secretary may by regulation treat related issues as 1 issue for purposes of the preceding sen- tence. (b) Qualified veterans’ mortgage bond defined For purposes of this part, the term ‘‘qualified veterans’ mortgage bond’’ means any bond—