26 U.S.C. § 146 | Volume cap

(a)

General rule

A private activity bond issued as part of an issue meets the requirements of this section if the aggregate face amount of the private activity bonds issued pursuant to such issue, when added to the aggregate face amount of tax-exempt private activity bonds previously issued by the issuing authority during the calendar year, does not exceed such authority’s volume cap for such calendar year.

(b)

Volume cap for State agencies

For purposes of this section—

(1)

In general

The volume cap for any agency of the State authorized to issue tax-exempt private activity bonds for any calendar year shall be 50 percent of the State ceiling for such calendar year.

(2)

Special rule where State has more than 1 agency

If more than 1 agency of the State is authorized to issue tax-exempt private activity bonds, all such agencies shall be treated as a single agency.

(c)

Volume cap for other issuers

For purposes of this section—

(1)

In general

The volume cap for any issuing authority (other than a State agency) for any calendar year shall be an amount which bears the same ratio to 50 percent of the State ceiling for such calendar year as—

(A)

the population of the jurisdiction of such issuing authority, bears to

(B)

the population of the entire State.

(2)

Overlapping jurisdictions

For purposes of paragraph (1)(A), if an area is within the jurisdiction of 2 or more governmental units, such area shall be treated as only within the jurisdiction of the unit having jurisdiction over the smallest geographical area unless such unit agrees to surrender all or part of such jurisdiction for such calendar year to the unit with overlapping jurisdiction which has the next smallest geographical area.

(d)

State ceiling

For purposes of this section—

(1)

In general

The State ceiling applicable to any State for any calendar year shall be the greater of—

(A)

an amount equal to $75 ($62.50 in the case of calendar year 2001) multiplied by the State population, or

(B)

$225,000,000 ($187,500,000 in the case of calendar year 2001).

(2)

Cost-of-living adjustment

In the case of a calendar year after 2002, each of the dollar amounts contained in paragraph (1) shall be increased by an amount equal to—

(A)

such dollar amount, multiplied by

(B)

the cost-of-living adjustment determined under section 1(f)(3) for such calendar year by substituting “calendar year 2001” for “calendar year 2016” in subparagraph (A)(ii) thereof.

If any increase determined under the preceding sentence is not a multiple of $5 ($5,000 in the case of the dollar amount in paragraph (1)(B)), such increase shall be rounded to the nearest multiple thereof.

(3)

Special rule for States with constitutional home rule cities

For purposes of this section—

(A)

In general

The volume cap for any constitutional home rule city for any calendar year shall be determined under paragraph (1) of subsection (c) by substituting “100 percent” for “50 percent”.

(B)

Coordination with other allocations

In the case of any State which contains 1 or more constitutional home rule cities, for purposes of applying subsections (b) and (c) with respect to issuing authorities in such State other than constitutional home rule cities, the State ceiling for any calendar year shall be reduced by the aggregate volume caps determined for such year for all constitutional home rule cities in such State.

(C)

Constitutional home rule city

July 1, 1971For purposes of this section, the term “constitutional home rule city” means, with respect to any calendar year, any political subdivision of a State which, under a State constitution which was adopted in 1970 and effective on , had home rule powers on the 1st day of the calendar year.

(4)

Special rule for possessions with populations of less than the population of the least populous State

(A)

In general

If the population of any possession of the United States for any calendar year is less than the population of the least populous State (other than a possession) for such calendar year, the limitation under paragraph (1)(A) shall not be less than the amount determined under subparagraph (B) for such calendar year.

(B)

Limitation

The limitation determined under this subparagraph, with respect to a possession, for any calendar year is an amount equal to the product of—

(i)

the fraction—

(I)

the numerator of which is the amount applicable under paragraph (1)(B) for such calendar year, and

(II)

the denominator of which is the State population of the least populous State (other than a possession) for such calendar year, and

(ii)

the population of such possession for such calendar year.

(5)

Increase and set aside for housing bonds for 2008

(A)

Increase for 2008

In the case of calendar year 2008, the State ceiling for each State shall be increased by an amount equal to $11,000,000,000 multiplied by a fraction—

(i)

the numerator of which is the State ceiling applicable to the State for calendar year 2008, determined without regard to this paragraph, and

(ii)

the denominator of which is the sum of the State ceilings determined under clause (i) for all States.

(B)

Set aside

(i)

In general

Any amount of the State ceiling for any State which is attributable to an increase under this paragraph shall be allocated solely for one or more qualified housing issues.

(ii)

Qualified housing issue

For purposes of this paragraph, the term “qualified housing issue” means—

(I)

an issue described in section 142(a)(7) (relating to qualified residential rental projects), or

(II)

a qualified mortgage issue (determined by substituting “12-month period” for “42-month period” each place it appears in section 143(a)(2)(D)(i)).

(e)

State may provide for different allocation

For purposes of this section—

(1)

In general

Except as provided in paragraph (3), a State may, by law provide a different formula for allocating the State ceiling among the governmental units (or other authorities) in such State having authority to issue tax-exempt private activity bonds.

(2)

Interim authority for Governor

(A)

In general

Except as otherwise provided in paragraph (3), the Governor of any State may proclaim a different formula for allocating the State ceiling among the governmental units (or other authorities) in such State having authority to issue private activity bonds.

(B)

Termination of authority

The authority provided in subparagraph (A) shall not apply to bonds issued after the earlier of—

(i)

the last day of the 1st calendar year after 1986 during which the legislature of the State met in regular session, or

(ii)

the effective date of any State legislation with respect to the allocation of the State ceiling.

(3)

State may not alter allocation to constitutional home rule cities

Except as otherwise provided in a State constitutional amendment (or law changing the home rule provision adopted in the manner provided by the State constitution), the authority provided in this subsection shall not apply to that portion of the State ceiling which is allocated to any constitutional home rule city in the State unless such city agrees to such different allocation.

(f)

Elective carryforward of unused limitation for specified purpose

(1)

In general

If—

(A)

an issuing authority’s volume cap for any calendar year after 1985, exceeds

(B)

the aggregate amount of tax-exempt private activity bonds issued during such calendar year by such authority,

such authority may elect to treat all (or any portion) of such excess as a carryforward for 1 or more carryforward purposes.

(2)

Election must identify purpose

In any election under paragraph (1), the issuing authority shall—

(A)

identify the purpose for which the carryforward is elected, and

(B)

specify the portion of the excess described in paragraph (1) which is to be a carryforward for each such purpose.

(3)

Use of carryforward

(A)

In general

If any issuing authority elects a carryforward under paragraph (1) with respect to any carryforward purpose, any private activity bonds issued by such authority with respect to such purpose during the 3 calendar years following the calendar year in which the carryforward arose shall not be taken into account under subsection (a) to the extent the amount of such bonds does not exceed the amount of the carryforward elected for such purpose.

(B)

Order in which carryforward used

Carryforwards elected with respect to any purpose shall be used in the order of the calendar years in which they arose.

(4)

Election

Any election under this paragraph (and any identification or specification contained therein), once made, shall be irrevocable.

(5)

Carryforward purpose

The term “carryforward purpose” means—

(A)

the purpose of issuing exempt facility bonds described in 1 of the paragraphs of section 142(a),

(B)

the purpose of issuing qualified mortgage bonds or mortgage credit certificates,

(C)

the purpose of issuing qualified student loan bonds, and

(D)

the purpose of issuing qualified redevelopment bonds.

(6)

Special rules for increased volume cap under subsection (d)(5)

No amount which is attributable to the increase under subsection (d)(5) may be used—

(A)

for any issue other than a qualified housing issue (as defined in subsection (d)(5)), or

(B)

to issue any bond after calendar year 2010.

(g)

Exception for certain bonds

Only for purposes of this section, the term “private activity bond” shall not include—

(1)

any qualified veterans’ mortgage bond,

(2)

any qualified 501(c)(3) bond,

(3)

any exempt facility bond issued as part of an issue described in paragraph (1), (2), (12), (13), (14), or (15) of section 142(a),

(4)

75 percent of any exempt facility bond issued as part of an issue described in paragraph (11) of section 142(a) (relating to high-speed intercity rail facilities),

(5)

75 percent of any exempt facility bond issued as part of an issue described in paragraph (16) of section 142(a) (relating to qualified broadband projects), and

(6)

75 percent of any exempt facility bond issued as part of an issue described in paragraph (17) of section 142(a) (relating to qualified carbon dioxide capture facilities).

Paragraphs (4) and (5) shall be applied without regard to “75 percent of” if all of the property to be financed by the net proceeds of the issue is to be owned by a governmental unit (within the meaning of section 142(b)(1)).

(h)

Exception for government-owned solid waste disposal facilities

(1)

In general

Only for purposes of this section, the term “private activity bond” shall not include any exempt facility bond described in section 142(a)(6) which is issued as part of an issue if all of the property to be financed by the net proceeds of such issue is to be owned by a governmental unit.

(2)

Safe harbor for determination of government ownership

In determining ownership for purposes of paragraph (1), section 142(b)(1)(B) shall apply, except that a lease term shall be treated as satisfying clause (ii) thereof if it is not more than 20 years.

(i)

Treatment of refunding issues

For purposes of the volume cap imposed by this section—

(1)

In general

The term “private activity bond” shall not include any bond which is issued to refund another bond to the extent that the amount of such bond does not exceed the outstanding amount of the refunded bond.

(2)

Special rules for student loan bonds

In the case of any qualified student loan bond, paragraph (1) shall apply only if the maturity date of the refunding bond is not later than the later of—

(A)

the average maturity date of the qualified student loan bonds to be refunded by the issue of which the refunding bond is a part, or

(B)

the date 17 years after the date on which the refunded bond was issued (or in the case of a series of refundings, the date on which the original bond was issued).

(3)

Special rules for qualified mortgage bonds

In the case of any qualified mortgage bond, paragraph (1) shall apply only if the maturity date of the refunding bond is not later than the later of—

(A)

the average maturity date of the qualified mortgage bonds to be refunded by the issue of which the refunding bond is a part, or

(B)

the date 32 years after the date on which the refunded bond was issued (or in the case of a series of refundings, the date on which the original bond was issued).

(4)

Average maturity

For purposes of paragraphs (2) and (3), average maturity shall be determined in accordance with section 147(b)(2)(A).

(5)

Exception for advance refunding

This subsection shall not apply to any bond issued to advance refund another bond.

(6)

Treatment of certain residential rental project bonds as refunding bonds irrespective of obligor

(A)

In general

If, during the 6-month period beginning on the date of a repayment of a loan financed by an issue 95 percent or more of the net proceeds of which are used to provide projects described in section 142(d), such repayment is used to provide a new loan for any project so described, any bond which is issued to refinance such issue shall be treated as a refunding issue to the extent the principal amount of such refunding issue does not exceed the principal amount of the bonds refunded.

(B)

Limitations

Subparagraph (A) shall apply to only one refunding of the original issue and only if—

(i)

the refunding issue is issued not later than 4 years after the date on which the original issue was issued,

(ii)

the latest maturity date of any bond of the refunding issue is not later than 34 years after the date on which the refunded bond was issued, and

(iii)

the refunding issue is approved in accordance with section 147(f) before the issuance of the refunding issue.

(j)

Population

For purposes of this section, determinations of the population of any State (or issuing authority) shall be made with respect to any calendar year on the basis of the most recent census estimate of the resident population of such State (or issuing authority) released by the Bureau of Census before the beginning of such calendar year.

(k)

Facility must be located within State

(1)

In general

Except as provided in paragraphs (2) and (3), no portion of the State ceiling applicable to any State for any calendar year may be used with respect to financing for a facility located outside such State.

(2)

Exception for certain facilities where State will get proportionate share of benefits

Paragraph (1) shall not apply to any exempt facility bond described in paragraph (4), (5), (6), or (10) of section 142(a) if the issuer establishes that the State’s share of the use of the facility (or its output) will equal or exceed the State’s share of the private activity bonds issued to finance the facility.

(3)

Treatment of governmental bonds to which volume cap allocated

Paragraph (1) shall not apply to any bond to which volume cap is allocated under section 141(b)(5)—

(A)

for an output facility, or

(B)

for a facility of a type described in paragraph (4), (5), (6), or (10) of section 142(a),

if the issuer establishes that the State’s share of the private business use (as defined by section 141(b)(6)) of the facility will equal or exceed the State’s share of the volume cap allocated with respect to bonds issued to finance the facility.

(l)

Issuer of qualified scholarship funding bonds

In the case of a qualified scholarship funding bond, such bond shall be treated for purposes of this section as issued by a State or local issuing authority (whichever is appropriate).

(m)

Treatment of amounts allocated to private activity portion of government use bonds

(1)

In general

The volume cap of an issuer shall be reduced by the amount allocated by the issuer to an issue under section 141(b)(5).

(2)

Advance refundings

Except as otherwise provided by the Secretary, any advance refunding of any part of an issue to which an amount was allocated under section 141(b)(5) (or would have been allocated if such section applied to such issue) shall be taken into account under this section to the extent of the amount of the volume cap which was (or would have been) so allocated.

(n)

Reduction for mortgage credit certificates, etc.

The volume cap of any issuing authority for any calendar year shall be reduced by the sum of—

(1)

the amount of qualified mortgage bonds which such authority elects not to issue under section 25(c)(2)(A)(ii) during such year, plus

(2)

the amount of any reduction in such ceiling under section 25(f) applicable to such authority for such year.

Pub. L. 99–514, title XIII, § 1301(b)Oct. 22, 1986100 Stat. 2630 Pub. L. 100–203, title X, § 10631(b)Dec. 22, 1987101 Stat. 1330–455 Pub. L. 100–647, title I, § 1013(a)(9)Nov. 10, 1988102 Stat. 3538 Pub. L. 101–239, title VII, § 7816(s)(2)Dec. 19, 1989103 Stat. 2423 Pub. L. 102–486, title XIX, § 1921(b)(3)Oct. 24, 1992106 Stat. 3028 Pub. L. 103–66, title XIII, § 13121(a)Aug. 10, 1993107 Stat. 432 Pub. L. 105–277, div. J, title II, § 2021(a)Oct. 21, 1998112 Stat. 2681–903 Pub. L. 106–554, § 1(a)(7) [title I, § 161(a)]Dec. 21, 2000114 Stat. 2763 Pub. L. 107–16, title IV, § 422(c)June 7, 2001115 Stat. 66 Pub. L. 108–357, title VII, § 701(c)Oct. 22, 2004118 Stat. 1539 Pub. L. 109–59, title XI, § 11143(c)Aug. 10, 2005119 Stat. 1965 Pub. L. 110–289, div. C, title IJuly 30, 2008122 Stat. 2886 Pub. L. 115–97, title I, § 11002(d)(1)(O)Dec. 22, 2017131 Stat. 2060 Pub. L. 117–58, div. H, title IVNov. 15, 2021135 Stat. 1331(Added , , ; amended , , ; , (10), (28), (40), title VI, § 6180(b)(3), , , 3543, 3544, 3728; , , ; , , ; , , ; , , ; , , , 2763A–624; , , ; , , ; , , ; , §§ 3007(a), 3021(a), , , 2892; , , ; , §§ 80401(c), 80402(c), , , 1334.)

Inflation Adjusted Items for Certain Years

section 1 of this titleFor inflation adjustment of certain items in this section, see Revenue Procedures listed in a table under .

Editorial Notes

Amendments

Pub. L. 117–58, § 80401(c)(2)2021—Subsec. (g). , substituted “Paragraphs (4) and (5)” for “Paragraph (4)” in concluding provisions.

Pub. L. 117–58, § 80401(c)(1)Subsec. (g)(5). , added par. (5).

Pub. L. 117–58, § 80402(c)Subsec. (g)(6). , added par. (6).

Pub. L. 115–972017—Subsec. (d)(2)(B). substituted “for ‘calendar year 2016’ in subparagraph (A)(ii)” for “for ‘calendar year 1992’ in subparagraph (B)”.

Pub. L. 110–289, § 3021(a)(1)2008—Subsec. (d)(5). , added par. (5).

Pub. L. 110–289, § 3021(a)(2)Subsec. (f)(6). , added par. (6).

Pub. L. 110–289, § 3007(a)Subsec. (i)(6). , added par. (6).

Pub. L. 109–592005—Subsec. (g)(3). substituted “(14), or (15) of section 142(a), and” for “or (14) of section 142(a) (relating to airports, docks and wharves, environmental enhancements of hydroelectric generating facilities, qualified public educational facilities, and qualified green building and sustainable design projects), and”.

Pub. L. 108–3572004—Subsec. (g)(3). substituted “(13), or (14)” for “or (13)” and “qualified public educational facilities, and qualified green building and sustainable design projects” for “and qualified public educational facilities”.

Pub. L. 107–162001—Subsec. (g)(3). substituted “(12), or (13)” for “or (12)” and “environmental enhancements of hydroelectric generating facilities, and qualified public educational facilities” for “and environmental enhancements of hydroelectric generating facilities”.

Pub. L. 106–5542000—Subsec. (d)(1), (2). amended pars. (1) and (2) generally. Prior to amendment, pars. (1) and (2) provided for State ceilings based on the per capita limits and aggregate limits set out in an included table.

Pub. L. 105–2771998—Subsec. (d)(1). added par. (1) and struck out heading and text of former par. (1). Text read as follows: “The State ceiling applicable to any State for any calendar year shall be the greater of—

“(A) an amount equal to $75 multiplied by the State population, or

“(B) $250,000,000.

Subparagraph (B) shall not apply to any possession of the United States.”

Pub. L. 105–277Subsec. (d)(2). added par. (2) and struck out heading and text of former par. (2). Text read as follows: “In the case of calendar years after 1987, paragraph (1) shall be applied by substituting—

“(A) ‘$50’ for ‘$75’, and

“(B) ‘$150,000,000’ for ‘$250,000,000’.”

Pub. L. 103–661993—Subsec. (g). , which directed the amendment of par. (4) by adding at the end thereof the following flush sentence: “Paragraph (4) shall be applied without regard to ‘75 percent of’ if all of the property to be financed by the net proceeds of the issue is to be owned by a governmental unit (within the meaning of section 142(b)(1)).”, was executed by inserting the sentence at the end of subsec. (g), to reflect the probable intent of Congress.

Pub. L. 102–4861992—Subsec. (g)(3). substituted “, (2), or (12)” for “or (2)” and “, docks and wharves, and environmental enhancements of hydroelectric generating facilities” for “and docks and wharves”.

Pub. L. 101–2391989—Subsec. (g)(3), (4). redesignated par. (3), relating to exempt facility bonds issued as part of an issue described in par. (11) of section 142(a), as (4).

Pub. L. 100–647, § 1013(a)(40)1988—Subsec. (d)(4)(B). , substituted “respect to a” for “respect a”.

Pub. L. 100–647, § 1013(a)(9)Pub. L. 100–203 Pub. L. 100–203Subsec. (f)(5)(A). , amended subpar. (A) generally, as in effect before amendment by . Before amendment by , subpar. (A) read as follows: “the purpose of issuing bonds referred to in one of the clauses of section 141(d)(1)(A),”.

Pub. L. 100–647, § 6180(b)(3)Subsec. (g)(3). , added par. (3) relating to exempt facility bonds issued as part of an issue described in par. (11) of section 142(a).

Pub. L. 100–647, § 1013(a)(28)(A)Subsec. (i)(2)(A). , amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “the maturity date of the bond to be refunded, or”.

Pub. L. 100–647, § 1013(a)(28)(B)Subsec. (i)(3)(A). , amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “the maturity date of the bond to be refunded, or”.

Pub. L. 100–647, § 1013(a)(28)(C)Subsec. (i)(4), (5). , added par. (4) and redesignated former par. (4) as (5).

Pub. L. 100–647, § 1013(a)(10)(A)Subsec. (k)(1). , substituted “paragraphs (2) and (3)” for “paragraph (2)”.

Pub. L. 100–647, § 1013(a)(10)(B)Subsec. (k)(3). , added par. (3).

Pub. L. 100–203 Pub. L. 100–647, § 1013(a)(9)1987—Subsec. (f)(5)(A). amended subpar. (A) generally, as amended by , restating it without change. See 1988 Amendment note above.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

section 80401(c) of Pub. L. 117–58Nov. 15, 2021section 80401(d) of Pub. L. 117–58 section 142 of this titleAmendment by applicable to obligations issued in calendar years beginning after , see , set out as a note under .

section 80402(c) of Pub. L. 117–58Dec. 31, 2021section 80402(f) of Pub. L. 117–58 section 45Q of this titleAmendment by applicable to obligations issued after , see , set out as a note under .

Effective Date of 2017 Amendment

Pub. L. 115–97Dec. 31, 2017section 11002(e) of Pub. L. 115–97 section 1 of this titleAmendment by applicable to taxable years beginning after , see , set out as a note under .

Effective Date of 2008 Amendment

section 3007(a) of Pub. L. 110–289July 30, 2008section 3007(c) of Pub. L. 110–289 section 42 of this titleAmendment by applicable to repayments of loans received after , see , set out as a note under .

section 3021(a) of Pub. L. 110–289July 30, 2008section 3021(c) of Pub. L. 110–289 section 143 of this titleAmendment by applicable to bonds issued after , see , set out as a note under .

Effective Date of 2005 Amendment

Pub. L. 109–59Aug. 10, 2005section 11143(d) of Pub. L. 109–59 section 142 of this titleAmendment by applicable to bonds issued after , see , set out as a note under .

Effective Date of 2004 Amendment

Pub. L. 108–357Dec. 31, 2004section 701(e) of Pub. L. 108–357 section 142 of this titleAmendment by applicable to bonds issued after , see , set out as a note under .

Effective Date of 2001 Amendment

Pub. L. 107–16Dec. 31, 2001section 422(f) of Pub. L. 107–16 section 142 of this titleAmendment by applicable to bonds issued after , see , set out as a note under .

Effective Date of 2000 Amendment

Pub. L. 106–554, § 1(a)(7) [title I, § 161(b)]Dec. 21, 2000114 Stat. 2763

“The amendment made by this section [amending this section] shall apply to calendar years after 2000.”

, , , 2763A–624, provided that:

Effective Date of 1998 Amendment

Pub. L. 105–277, div. J, title II, § 2021(b)Oct. 21, 1998112 Stat. 2681–903

“The amendment made by this section [amending this section] shall apply to calendar years after 1998.”

, , , provided that:

Effective Date of 1993 Amendment

Pub. L. 103–66, title XIII, § 13121(b)Aug. 10, 1993107 Stat. 432

December 31, 1993“The amendment made by subsection (a) [amending this section] shall apply to bonds issued after .”

, , , provided that:

Effective Date of 1992 Amendment

Pub. L. 102–486Oct. 24, 1992section 1921(c) of Pub. L. 102–486 section 142 of this titleAmendment by applicable to bonds issued after , see , set out as a note under .

Effective Date of 1989 Amendment

Pub. L. 101–239 Pub. L. 100–647 section 7817 of Pub. L. 101–239 section 1 of this titleAmendment by effective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, , to which such amendment relates, see , set out as a note under .

Effective Date of 1988 Amendment

Pub. L. 100–647 Pub. L. 99–514 section 1019(a) of Pub. L. 100–647 section 1 of this titleAmendment by section 1013(a)(9), (10), (28), (40) of effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, , to which such amendment relates, see , set out as a note under .

section 6180(b)(3) of Pub. L. 100–647Nov. 10, 1988section 6180(c) of Pub. L. 100–647 section 142 of this titleAmendment by applicable to bonds issued after , see , set out as a note under .

Effective Date of 1987 Amendment

Pub. L. 100–203Oct. 13, 1987section 10631(c) of Pub. L. 100–203 section 141 of this titleAmendment by applicable, with certain exceptions, to bonds issued after (other than bonds issued to refund bonds issued on or before such date), see , set out as a note under .