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Federal Budget Sequestration May Reduce Direct Pay Subsidies for Build America Bonds and Other “Direct Pay” Obligations

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Federal Budget Sequestration May Reduce Direct Pay Subsidies for Build America Bonds and Other “Direct Pay” Obligations CLIENT ADVISORY edwardswildman.com Client Advisory | September 2012 Federal Budget Sequestration May Reduce Direct Pay Subsidies for Build America Bonds and Other “Direct Pay” Obligations On September 14, 2012, the federal Office of Management and Budget (“OMB”) released a report to Congress regarding the implementation of certain provisions of the Budget Control Act of 2011 (the “2011 Budget Control Act”). Among other matters, the report sets forth a breakdown of exempt and non-exempt budget accounts and estimated funding reductions for federal fiscal year 2013 across non-exempt accounts that may be required if budgetary “sequestration” is implemented. In particular, the report includes Sequestration is a system of auto- are preliminary, and the actual federal fiscal year 2013 reduc- matic, across-the-board cuts to reductions may differ from those tions in the federal government’s federal spending in designated indicated in the report as a result subsidy payments, also known as agencies and programs. Vari- of changes in law and ongoing “direct pay subsidies,” for interest ous statutory provisions establish legal, budgetary and technical on build America bonds, qualified exemptions for certain programs analysis. It is unclear at this point zone academy bonds, qualified (such as the Medicaid program whether sequestration will in fact school construction bonds and and most federal aid for high- be implemented for federal fiscal qualified energy conservation ways) and set forth specific alloca- year 2013 and whether subsi- bonds (collectively, “direct pay tions of reductions for defense and dies for direct pay bonds will be bonds”). non-defense spending. According affected for fiscal years following to the OMB report, in the case 2013. The 2011 Budget Control Act of direct pay bonds, a 7.6% cut required the Joint Select Committee The OMB report can be found will be made to direct pay subsi- on Deficit Reduction (the “Commit- at: http://www.whitehouse.gov/ dies in federal fiscal year 2013 tee”) to propose, and for Congress sites/default/files/omb/assets/ if sequestration is implemented. to enact, a plan to reduce the fed- legislative_reports/stareport.pdf. As an example, in the case of a eral budget deficit by $1.2 trillion build America bond with respect The total dollar amount of the pro- over a ten-year period. The Com- to which an issuer would otherwise posed reductions for federal fiscal mittee, however, failed to agree on receive a 35% direct pay subsidy, year 2013 is approximately $109 a proposal, and to date Congress this would mean that the subsidy billion, of which approximately has not enacted a reduction plan. would be reduced to an effective $322 million is allocable to reduc- As a result, under the terms of the rate of 32.34% for federal fiscal tions in direct pay subsidies. It 2011 Budget Control Act, a bud- year 2013. appears likely that sequestration, get “sequestration” is scheduled to if implemented, will adversely go into effect on January 2, 2013, According to the OMB report, all affect state and local govern- unless Congressional action is of the estimated reductions, includ- ment finances in different ways, taken prior to that date to avert the ing those for direct pay subsidies, depending upon their particular sequestration. 2 | Federal Budget Sequestration May Reduce Direct Pay Subsidies for Build America Bonds and Other “Direct Pay” Obligations circumstances. The effects will be Lawyers in the Public Finance Wildman lawyer responsible for both direct as federal outlays for Department of Edwards Wildman your public finance matters or one various programs are reduced and Palmer LLP are actively monitor- of the authors listed below if you indirect to the extent decreased ing developments relating to fed- have any questions regarding this economic activity results from the eral budget sequestration. Please topic. sequestration process. feel free to contact the Edwards BOSTON CHICAGO FT LAUDERDALE HARTFORD LONDON LOS ANGELES MADISON NJ NEW YORK NEWPORT BEACH PROVIDENCE STAMFORD TOKYO WASHINGTON DC WEST PALM BEACH HONG KONG (associated office) This advisory is for guidance only and is not intended to be a substitute for specific legal advice. If you would like further information, please contact the Edwards Wildman Palmer LLP lawyer responsible for your matters or one of the lawyers listed below: Richard Manley, Partner +1 617 239 0384 [email protected] Christie Lombard Martin, Partner +1 617 239 0380 [email protected] Antonio Martini, Partner +1 617 239 0571 [email protected] Walter St. Onge, Partner +1 617 239 0389 [email protected] Joe Forrester, Counsel +1 212 912 2883 [email protected] This advisory is published by Edwards Wildman Palmer for the benefit of clients, friends and fellow professionals on matters of interest. The information contained herein is not to be construed as legal advice or opinion. We provide such advice or opinion only after being engaged to do so with respect to particular facts and circumstances. The firm is not authorized under the UK Financial Services and Markets Act 2000 to offer UK investment services to clients. In certain circumstances, as members of the Law Society of England and Wales, we are able to provide these investment services if they are an incidental part of the professional services we have been engaged to provide. Please note that your contact details, which may have been used to provide this bulletin to you, will be used for communications with you only. If you would prefer to discontinue receiving information from the firm, or wish that we not contact you for any purpose other than to receive future issues of this bulletin, please contact us at [email protected]. © 2012 Edwards Wildman Palmer LLP a Delaware limited liability partnership including professional corporations and Edwards Wildman Palmer UK LLP a limited liability partnership registered in England (registered number OC333092) and is authorised and regulated by the Solicitors Regulation Authority. Disclosure required under U.S. Circular 230: Edwards Wildman Palmer LLP informs you that any tax advice contained in this communication, including any attachments, was not intended or written to be used, and cannot be used, for the purpose of avoiding federal tax related penalties, or promoting, marketing or recommending to another party any transaction or matter addressed herein. ATTORNEY ADVERTISING: This publication may be considered “advertising material” under the rules of professional conduct governing attorneys in some states. The hiring of an attorney is an important decision that should not be based solely on advertisements. Prior results do not guarantee similar outcomes. edwardswildman.com.
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