NAC: CHAPTER 348A - ISSUANCE OF PRIVATE ACTIVITY BONDS

[Rev. 11/21/2013 4:06:36 PM--2013]

[NAC-348A Revised Date: 4-12]

CHAPTER 348A - ISSUANCE OF PRIVATE ACTIVITY BONDS

348A.010 Definitions.

348A.020 “Allocation” defined.

348A.030 “Code” defined.

348A.040 “Department” defined.

348A.050 “Director” defined.

348A.060 “Local agency” defined.

348A.070 “Local government” defined.

348A.080 “Local population share” defined.

348A.085 “Office of Business Finance and Planning” defined.

348A.090 “Private activity bond” defined.

348A.100 “Project” defined.

348A.110 “Special Committee” defined.

348A.120 “State agency” defined.

348A.130 “State ceiling” defined.

348A.140 “State estimate of the population” defined.

348A.150 “Volume cap” defined.

348A.160 Determination of volume cap for local government.

348A.165 Reports to Office of Business Finance and Planning; consideration of whether local government or local agency has abandoned any of its volume cap.

348A.170 Augmentation by Director of volume cap for local government.

348A.180 Transfer of volume cap or local population share by local government.

348A.190 Project by local agency without local population share.

348A.200 Priority for local government that transfers volume cap.

348A.210 Consent required for certain augmentations and transfers.

348A.220 Reversion to Director of volume cap for local government.

348A.230 Transfer of volume cap or state ceiling by Director.

348A.240 Application for issuance of bonds; allocation certificate.

348A.250 Director: Determination of state ceiling; notification of local government; posting of information.

348A.260 Certificates: Issuance of bonds; transfer of volume cap.

348A.270 Certificates: Official record; duties of Director.

348A.280 Special Committee to Provide Advice on Private Activity Bonds. [Effective through June 30, 2012.]

348A.280 Special Committee to Provide Advice on Private Activity Bonds. [Effective July 1, 2012.]

348A.290 Requests for clarification, relief or information.

348A.300 Fee for allocation of portion of state ceiling.

NAC 348A.010 Definitions. (NRS 348A.040) As used in this chapter, unless the context otherwise requires, the words and terms defined in NAC 348A.020 to 348A.150, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R038-02, 6-26-2002; R095-05, 10-31-2005)

NAC 348A.020 “Allocation” defined. (NRS 348A.040) “Allocation” means the principal amount of private activity bonds which is reserved and assigned to state and local governmental agencies authorized by law to issue private activity bonds.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.030 “Code” defined. (NRS 348A.040) “Code” means the Internal Revenue Code of 1954, as amended.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.040 “Department” defined. (NRS 348A.040) “Department” means the Department of Business and Industry.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.050 “Director” defined. (NRS 348A.040) “Director” means the Director of the Department.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.060 “Local agency” defined. (NRS 348A.040) “Local agency” means any political subdivision of the State or of a local government authorized to issue private activity bonds.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.070 “Local government” defined. (NRS 348A.040) “Local government” means any county or incorporated city in this State. The term includes Carson City.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.080 “Local population share” defined. (NRS 348A.040) “Local population share” means:

1. For each incorporated city and Carson City, a percentage calculated for each calendar year by dividing the most recent state estimate of the population of the city by the most recent state estimate of the population of the State.

2. For each county, a percentage calculated for each calendar year by dividing the most recent state estimate of the population of the unincorporated area of the county by the most recent state estimate of the population of the State.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.085 “Office of Business Finance and Planning” defined. (NRS 348A.040) “Office of Business Finance and Planning” means the Office of Business Finance and Planning created in the Department pursuant to NRS 232.522.

(Added to NAC by Dep’t of Business & Industry by R095-05, eff. 10-31-2005)

NAC 348A.090 “Private activity bond” defined. (NRS 348A.040) “Private activity bond” has the meaning ascribed to it in 26 U.S.C. § 141.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.100 “Project” defined. (NRS 348A.040) “Project” means any construction, planned expenditure, program or other activity intended to be financed by a private activity bond which is described in sufficient detail to determine eligibility for financing.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.110 “Special Committee” defined. (NRS 348A.040) “Special Committee” means the Special Committee to Provide Advice on Private Activity Bonds created pursuant to NAC 348A.280.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.120 “State agency” defined. (NRS 348A.040) “State agency” means the Department, any division thereof or any other entity authorized to issue private activity bonds in the name of the State of Nevada or any agency of the State.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.130 “State ceiling” defined. (NRS 348A.040) “State ceiling” has the meaning ascribed to it in 26 U.S.C. § 146(d).

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.140 “State estimate of the population” defined. (NRS 348A.040) “State estimate of the population” means the estimate of the population of the State and its subdivisions published by the Department of Taxation and certified by the Governor pursuant to NRS 360.285.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.150 “Volume cap” defined. (NRS 348A.040) “Volume cap” has the meaning ascribed to it in 26 U.S.C. § 146(b) and (c).

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.160 Determination of volume cap for local government. (NRS 348A.040) The local population share of a local government in this State will be used to determine the volume cap for that government at the beginning of each calendar year, pursuant to NRS 348A.020.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.165 Reports to Office of Business Finance and Planning; consideration of whether local government or local agency has abandoned any of its volume cap. (NRS 348A.040)

1. Each local government or local agency which, on or before December 31 of any year, has indicated, through adoption of a resolution or otherwise, that it has used, intends to use or has reserved its entire allocation of volume cap, or a portion thereof, for a specific project or use for that year, or which has carried forward any volume cap in any of the immediately preceding 3 years, shall file a report concerning that year with the Office of Business Finance and Planning of the Department.

2. The report must be filed on or before February 15 of the subsequent year, and set forth with respect to the local government or local agency for the year covered by the report:

(a) The amount and source of its volume cap used during that year for each project and authorized use;

(b) The amount and authorized use of its volume cap carried forward from that year to the subsequent year; and

(c) The amount of its volume cap carried forward from each of the immediately preceding 3 years and available during that year, including:

(1) The amount of such volume cap used during that year;

(2) The amount of such volume cap carried forward to the subsequent year;

(3) The amount of such volume cap abandoned during that year; and

(4) The name of the project or authorized use to which such volume cap relates.

3. The Director will consider whether a local government or local agency has abandoned any of its volume cap in determining whether to consent to any augmentation or transfer of any volume cap pursuant to NAC 348A.170 and 348A.180 or to approve the transfer of any volume cap pursuant to NAC 348A.230.

(Added to NAC by Dep’t of Business & Industry by R140-06, eff. 9-18-2006)

NAC 348A.170 Augmentation by Director of volume cap for local government. (NRS 348A.040)

1. A local government may apply to the Director for a transfer of any portion of the state ceiling allocated to the Director pursuant to NRS 348A.020, or any augmentation of the Director’s allocation. The application must contain such information as the Director may require.

2. The Director will augment the volume cap for any local government only for a specific project.

3. The Director, upon the advice of the Special Committee, may transfer to a local government a portion of the state ceiling assigned as an allocation to or controlled by the Director, upon such terms and conditions as the Director may determine.

4. An allocation made or transferred to a local government by the Director is irrevocable upon the issuance of private activity bonds for the project being financed pursuant thereto to the extent of the principal amount of the bonds so issued. The local government to which the allocation is made or the local agency to which the allocation is transferred for the eventual issuance of private activity bonds may treat all or any portion of the allocation or transfer as a carry forward pursuant to the Code unless the allocation or transfer provides otherwise.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.180 Transfer of volume cap or local population share by local government. (NRS 348A.040)

1. A local government may, by resolution, transfer to any other local government located within the same county, all or any portion of its volume cap or local population share for a specific project. Any portion that is transferred is subject to the provisions of NAC 348A.220 in the same manner as the local population share of the local government receiving the transfer. A copy of the resolution must:

(a) Be mailed to the Director and the Secretary of the State Board of Finance;

(b) Identify a representative of the local government with whom the Director may communicate regarding the resolution; and

2. A local government may transfer to the Director, by resolution, all or any portion of its volume cap or local population share for any specified project or use authorized by the Code for private activity bonds, subject to the Director’s approval. The resolution must identify a representative of the local government with whom the Director may communicate regarding the resolution and must provide a means of contacting that representative.

3. Any transfer made pursuant to this section may be subject to such terms and conditions as may be established by the local government in its resolution if the resolution requires the beneficiary of the transfer to:

(a) Notify the Director in writing as soon as practicable of the occurrence or nonoccurrence of any term or condition that would affect the disposition of the subject volume cap;

(b) Identify a representative of the beneficiary of the transfer with whom the Director may communicate regarding the resolution; and

4. Any transfer is irrevocable upon the issuance of private activity bonds for the project which is the subject of the transfer to the extent of the principal amount of the bonds so issued.

5. The local government receiving the transfer may elect to treat all or any portion of the transfer as a carry forward, if permitted by the Code, unless the resolution making the transfer provides otherwise. If the local government receiving the transfer elects to treat all or any portion of the transfer as a carry forward, the local government receiving the transfer shall provide to the Director a copy of the federal tax form filed to evidence its election within 30 days after the form is filed with the Internal Revenue Service.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R038-02, 6-26-2002; R095-05, 10-31-2005)

NAC 348A.190 Project by local agency without local population share. (NRS 348A.040)

1. A local agency which does not have a local population share of the state ceiling shall apply to the local government in which the project to be financed is located for use of the local government’s local population share for the project.

2. If the project of the local agency requires an augmentation of the local government’s local population share, the local government may request an augmentation of its local population share for the project in any manner permitted in this chapter.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.200 Priority for local government that transfers volume cap. (NRS 348A.040) The Director will give priority to the issuance of private activity bonds by or on behalf of a local government, in an amount which does not exceed the amount of the volume cap transferred to the Director by the local government in the current calendar year.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A 11-13-90)

NAC 348A.210 Consent required for certain augmentations and transfers. (NRS 348A.040) No augmentation of the volume cap for or transfer made to a local government pursuant to NAC 348A.170 and 348A.180 may be transferred by the initial recipient to any other local government, state agency or agency of any other state without the written consent of the Director.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.220 Reversion to Director of volume cap for local government. (NRS 348A.040)

1. After September 1 of any calendar year, the volume cap for the Director will, for the remainder of that calendar year, be augmented by an amount equal to any unused portion of the volume cap assigned for that calendar year to any local government pursuant to chapter 348A of NRS, and augmented pursuant to this chapter, unless the local government adopts a resolution on or before September 1 of that year indicating that it has used, intends to use or has reserved its entire allocation, or a portion thereof, for a specified project or use for the remainder of that calendar year.

2. Any portion of a local government’s volume cap allocated for a calendar year which is not committed to a specified project by September 1, or is not sufficiently identified or adequately described in a resolution adopted by the local government, reverts to the Director.

3. A copy of the resolution required by subsection 1 must:

(a) Identify a representative of the local government with whom the Director may communicate regarding the resolution;

(b) Provide a means of contacting that representative;

(d) Be received on or before September 15 of the calendar year to which it applies, or the local government’s local population share reverts to the Director.

4. On October 1 of each calendar year, or as soon thereafter as is practicable, the Director will:

(a) File a certificate on a form designated by the Secretary of the State Board of Finance, specifying the local governments affected by the provisions of this section and the amount by which the Director’s volume cap is augmented for the remainder of the calendar year;

(b) File a copy of the certificate with the Secretary of the State Board of Finance; and

5. If a local government has adopted and mailed a resolution pursuant to the provisions of this section, it shall determine not later than December 1 if the allocation reserved has been, or will be, used by December 31 through the issuance of bonds or used by February 15 of the following year through a carry forward to a subsequent year and shall immediately certify in writing to the Director the amount of the reserved allocation which will be used.

6. If the local government fails to certify on or before December 1 that any portion of a reserved allocation will be used or if the Director does not receive written certification by December 10, the unused portion of the reserved allocation reverts to the Director. As soon thereafter as is practicable, the Director will:

(a) File a certificate in the form and manner provided in subsection 4;

(b) Mail a copy of the certificate to the representative of the local government;

(d) Post a copy of the certificate on the website of the Office of Business Finance and Planning.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R038-02, 6-26-2002; R095-05, 10-31-2005)

NAC 348A.230 Transfer of volume cap or state ceiling by Director. (NRS 348A.040)

1. An agency of this State or the agency of any other state which has the authority to issue private activity bonds may apply to the Director for a transfer of a portion of the Director’s volume cap or any share of the state ceiling controlled by the Director. The application must contain such information as the Director may require.

2. An application filed pursuant to subsection 1 must be for a specific project.

3. The Director, upon the advice of the Special Committee, may transfer to an applicant a portion of the state ceiling controlled by the Director upon such terms and conditions as the Director may determine.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88)

NAC 348A.240 Application for issuance of bonds; allocation certificate. (NRS 348A.040)

1. An application for the issuance of private activity bonds by the Director must be submitted on a form approved by the Director. Before any private activity bonds are issued, the Director will execute, issue and file with the Office of Business Finance and Planning and the Secretary of the State Board of Finance an allocation certificate in a form approved by the Secretary in the amount of the bonds to be issued for the benefit of the applicant or the sponsor of the project, reserving a portion of the state ceiling for the project for 45 days after the date of the issuance of the certificate.

2. An allocation certificate issued pursuant to this section may only be extended by the Director, upon the advice of the Special Committee, for a term and under such conditions as he or she determines. An extension will not be granted if it would cause the amount of private activity bonds issued for the calendar year to exceed the state ceiling.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R095-05, 10-31-2005)

NAC 348A.250 Director: Determination of state ceiling; notification of local government; posting of information. (NRS 348A.040) The Director will, at the beginning of each calendar year:

1. Determine the state ceiling for that year, based upon the state estimate of the population;

2. Notify the appropriate representative of each local government of the state ceiling and the amount of the state ceiling allocated to that local government; and

3. Post the information concerning the allocation for each local government on the website of the Office of Business Finance and Planning.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R095-05, 10-31-2005)

NAC 348A.260 Certificates: Issuance of bonds; transfer of volume cap. (NRS 348A.040)

1. The Director, any state agency, any local government and any local agency which issues private activity bonds subject to the limitations established in the Code shall file a certificate with the Office of Business Finance and Planning describing the amount of the bonds and the purpose for which they were issued. The certificate must be filed within 15 days after the date on which the bonds are issued.

2. A local government shall or the Director will, within 5 days after transferring any portion of the volume cap of the local government or the allocation of the state ceiling under the control of the Director, file a certificate with the Office of Business Finance and Planning indicating that the transfer was made. The transfer becomes effective on the date on which the certificate is filed with the Office of Business Finance and Planning.

3. If good cause is shown, the Special Committee may grant upon referral from the Director a variance from the provisions of this section if the variance does not cause the amount of private activity bonds issued for the calendar year to exceed the state ceiling.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R095-05, 10-31-2005)

NAC 348A.270 Certificates: Official record; duties of Director. (NRS 348A.040) The official record of all certificates filed pursuant to NAC 348A.260 must be maintained in the Office of Business Finance and Planning. The Director will:

1. File a copy of each certificate executed pursuant to NAC 348A.260 with the Secretary of the State Board of Finance; and

2. Post a copy of each certificate on the website of the Office of Business Finance and Planning.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R095-05, 10-31-2005)

NAC 348A.280 Special Committee to Provide Advice on Private Activity Bonds. [Effective through June 30, 2012.] (NRS 348A.040)

1. The Special Committee to Provide Advice on Private Activity Bonds is hereby created, consisting of the following members:

(a) The Director, who will act as Chair.

(b) The Executive Director of the Commission on Economic Development, or a designee thereof.

(d) The Chief of the Office of Business Finance and Planning, who shall act as the ex officio Secretary of the Committee and as the Chair in the Director’s absence.

(e) The Director of the Nevada Association of Counties, or a designee thereof.

(f) The Director of the Nevada League of Cities, or a designee thereof.

2. The Director may appoint an additional member to the Committee who:

(a) Is a member of the general public;

(b) Is knowledgeable in matters referred to the Committee; and

3. Four members of the Committee must be present to conduct the business of the Committee.

4. The Committee shall consider any matter referred to it pursuant to this chapter and may, if requested, advise the Governor, the State Board of Finance and the Director on any matter concerning private activity bonds.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R038-02, 6-26-2002; R095-05, 10-31-2005)

NAC 348A.280 Special Committee to Provide Advice on Private Activity Bonds. [Effective July 1, 2012.] (NRS 348A.040)

1. The Special Committee to Provide Advice on Private Activity Bonds is hereby created, consisting of the following members:

(a) The Director, who will act as Chair.

(b) The Executive Director of the Office of Economic Development, or a designee thereof.

(d) The Chief of the Office of Business Finance and Planning, who shall act as the ex officio Secretary of the Committee and as the Chair in the Director’s absence.

(e) The Director of the Nevada Association of Counties, or a designee thereof.

(f) The Director of the Nevada League of Cities, or a designee thereof.

2. The Director may appoint an additional member to the Committee who:

(a) Is a member of the general public;

(b) Is knowledgeable in matters referred to the Committee; and

3. Four members of the Committee must be present to conduct the business of the Committee.

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R038-02, 6-26-2002; R095-05, 10-31-2005)

NAC 348A.290 Requests for clarification, relief or information. (NRS 348A.040) Any person who wishes:

1. A clarification of the application of the provisions of this chapter;

2. Relief from the strict application of any provision of this chapter; or

3. Information concerning the procedures for submitting requests to the Director or the Special Committee,

Ê may address a written request therefor as follows:

Attn: Director

Department of Business and Industry

555 East Washington Avenue, Suite 4900

Las Vegas, Nevada 89101-1075

(Added to NAC by Dep’t of Commerce, eff. 2-18-88; A by Dep’t of Business & Industry by R038-02, 6-26-2002)

NAC 348A.300 Fee for allocation of portion of state ceiling. (NRS 348A.040)

1. If a portion of the state ceiling for private activity bonds allocated to or controlled by the Director is assigned, transferred or committed to a recipient or an allocation certificate is issued by the Director, the sponsor of the project shall pay or become obligated to pay to the Director a fee for the allocation of that portion of the state ceiling for private activity bonds in the amount of $600 per $1,000,000 or any fraction thereof of the portion that is the subject of the transfer, assignment, commitment or allocation certificate.

2. The payment must be remitted at the time of:

(a) The assignment or transfer;

(b) The issuance of the allocation certificate; or

Ê whichever date of payment is agreed to by the Director and the applicant or recipient.

3. The Director will use the fees collected pursuant to this section exclusively to support the operations of his or her office that are in connection with the programs administered pursuant to the provisions of chapters 348A and 349 of NRS and any regulations adopted pursuant thereto.

4. The Director will establish the appropriate accounts and procedures for the deposit and expenditure of money received pursuant to this section.

5. This section applies to:

(a) Any transfer or assignment of, or any allocation certificate issued for, any portion of the state ceiling for private activity bonds that is subject to the authority of the Director; and

(b) Any other official act performed by the Director that allocates, obligates, uses or commits any such portion of the state ceiling for private activity bonds.

(Added to NAC by Dep’t of Commerce, eff. 7-6-92; A by Dep’t of Business & Industry by R104-08, 12-17-2008)