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§ 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—
(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—
(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—
(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—
(B)
the cost-of-living adjustment determined under section
1
(f)(3) for such calendar year by substituting “calendar year 2001” for “calendar year 1992” in subparagraph (B) 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
For 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 July 1, 1971, 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.
(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.
(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—
(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—
(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.
(4)
Election
Any election under this paragraph (and any identification or specification contained therein), once made, shall be irrevocable.
(g)
Exception for certain bonds
Only for purposes of this section, the term “private activity bond” shall not include—
(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), and
(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—
(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—
(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)—
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
(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
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