Notice 2009-51

Part III. Administrative, Procedural, and Miscellaneous
Tribal Economic Development
Bonds
Notice 2009–51
SECTION 1. PURPOSE
This notice solicits applications for allocations of the $2 billion national bond
volume limitation authority (“volume
cap”) to issue tribal economic development bonds (“Tribal Economic Development Bonds”) under new § 7871(f) of the
Internal Revenue Code (the “Code”). This
notice also provides related guidance on
the following: (1) eligibility requirements
that a project must meet to be considered
for a volume cap allocation, (2) application requirements, deadlines, and forms
for requests for volume cap allocations,
(3) the method that the Internal Revenue
Service (“IRS”) and the Department of the
Treasury (“Treasury”) will use to allocate
the volume cap, and (4) certain interim
guidance in this area.
SECTION 2. INTRODUCTION
Section 1402 of Title I of Division B
of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111–5,
123 Stat. 115 (2009) (the “Act”), added
new § 7871(f) to the Code. In general,
the purpose of new § 7871(f) is to give
Indian tribal governments greater flexibility to use tax-exempt bonds to finance
economic development projects than is
allowable under the existing standard of
§ 7871(c). The more restrictive standard
under § 7871(c) generally limits the use by
Indian tribal governments of tax-exempt
bonds to the financing of certain activities that constitute essential governmental
functions customarily performed by State
and local governments with general taxing
powers and certain manufacturing facilities. The more flexible standard under new
§ 7871(f) generally allows Indian tribal
governments to use tax-exempt bonds
under the new $2 billion volume cap to finance any economic development projects
(excluding certain gaming facilities and
projects located outside of Indian reservations as provided in § 7871(f)(3)(B))
or other activities for which State or local

July 13, 2009

governments could use tax-exempt bonds
under § 103.
State and local governments generally
can use tax-exempt governmental bonds
to finance an unspecified broad range of
projects and activities so long as (1) not
more than 10 percent of the bond proceeds
are used for private business use and (2)
the debt service on no more than 10 percent of bond proceeds is payable or secured from payments or property used for
private business use. In addition, special
rules under § 141(b)(3) and § 141(c) further limit the use of tax-exempt governmental bonds in certain circumstances involving disproportionate or unrelated private business use and private loans.
In addition, State and local governments can use tax-exempt qualified private
activity bonds to finance certain specified
types of projects and activities without
regard to the level of private involvement. State and local governments can
issue qualified tax-exempt private activity
bonds under § 141(e) and related provisions for projects and activities, including
the following : (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 low-income
residential rental multifamily housing
projects, (8) facilities for the local furnishing of electric energy or gas, (9) local
district heating or cooling facilities, (10)
qualified hazardous waste facilities, (11)
high-speed intercity rail facilities, (12)
environmental enhancements of hydroelectric generating facilities, (13) qualified
public educational facilities, (14) qualified
green buildings and sustainable design
projects, (15) qualified highway or surface
freight transfer facilities, (16) qualified
mortgage bonds or qualified veterans
mortgage bonds for certain single-family
housing mortgage loans, (17) qualified
small issue bonds for certain manufacturing facilities, (18) qualified student
loan bonds, (19) qualified redevelopment
bonds, and (20) qualified 501(c)(3) bonds
for the exempt charitable and educational
activities of § 501(c)(3) nonprofit organizations.
Finally, State and local governments
can use tax-exempt bonds in “refunding is-

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sues,” as defined in § 1.150–1(d) of the Income Tax Regulations, to refinance prior
bonds, subject to certain restrictions, including a restriction under § 149(d) against
not more than one “advance refunding issue,” as defined in § 1.150–1(d)(4), for taxexempt governmental bonds, and a prohibition against any advance refunding issue for tax-exempt qualified private activity bonds.
Thus, subject to the restrictions of
§ 7871(f)(3)(B), Indian tribal governments
can use Tribal Economic Development
Bonds to finance a broad range of governmental projects, including hotels, convention centers, or golf courses, as well
as projects involving certain qualified
private activities, to the same extent and
subject to the same limitations imposed
on State and local governments. The
Tribes can also, subject to the limitations
of § 7871(f)(3)(B), use the Bonds for refunding issues, to the same extent as State
and local governments.
SECTION 3. BACKGROUND
Section 7871(a)(4) provides that, subject to § 7871(c), an Indian tribal government is to be treated as a State for purposes
of § 103 (relating to State and local bonds).
Section 7871(c)(1) provides generally that,
except for obligations for certain manufacturing facilities described in § 7871(c)(3),
§ 103(a) shall apply to any obligation issued by an Indian tribal government (or
subdivision thereof) only if such obligation is part of an issue substantially all of
the proceeds of which are to be used in
the exercise of any essential governmental function. Section 7871(e) provides that
for purposes of § 7871 the term “essential governmental function” shall not include any function which is not customarily performed by State and local governments with general taxing power.
New §7871(f)(1) added by the Act provides that the Treasury Department shall
allocate the $2 billion national volume cap
for Tribal Economic Development Bonds
among the Indian tribal governments in
such manner as the Treasury Department,
in consultation with the Secretary of the
Interior, determines appropriate. Section
7871(f)(2)(A) provides that, notwithstanding the provisions of § 7871(c), Tribal Eco-

2009–28 I.R.B.

nomic Development Bonds are treated for
purposes of the Code as if they were issued by a State. Section 7871(f)(2)(B) provides that with respect to Tribal Economic
Development Bonds, the Indian tribal government issuing such bonds and any instrumentality of such Indian tribal government
are to be treated as a State for purposes of
§ 141. Section 7871(f)(2)(C) provides that
the § 146 volume cap limitations on private activity bonds do not apply to Tribal
Economic Development Bonds.
Section 7871(f)(3)(A) defines a Tribal
Economic Development Bond generally to
mean any bond issued by an Indian tribal
government the interest on which would be
exempt from tax under § 103 if issued by
a State or local government and which is
designated by the Indian tribal government
as a Tribal Economic Development Bond
for purposes of § 7871(f).
Section 7871(f)(3)(B) further provides
that the term Tribal Economic Development Bond shall not include any bond issued as part of an issue if any portion of
the proceeds of such issue are used to finance: (1) any portion of a building in
which class II or class III gaming (as defined in section 4 of the Indian Gaming
Regulatory Act) is conducted or housed
or any other property actually used in the
conduct of such gaming or (2) any facility
located outside the Indian reservation (as
defined in § 168(j)(6)). Section 168(j)(6)
provides that the term “Indian reservation”
means a reservation as defined in § 3(d)
of the Indian Financing Act of 1974, 25
U.S.C. § 1452(d) applied by treating the
term “Indian reservations in Oklahoma” as
including only lands which are within the
jurisdictional area of an Oklahoma Indian
tribe (as determined by the Secretary of
the Interior) and which are recognized by
the Secretary of the Interior as eligible for
trust land status under 25 CFR Part 151 (as
in effect on the date of the enactment of
this sentence) or a reservation defined in
§ 4(10) of the Indian Child Welfare Act of
1978, 25 U.S.C. 1903(10)
Section 7871(f)(3)(C) provides that the
maximum aggregate face amount of bonds
which may be designated by any Indian
tribal government under § 7871(f)(3)(A)
may not exceed the amount of national
Tribal Economic Development Bond volume cap allocated to such Indian tribal
government under § 7871(f)(1).

2009–28 I.R.B.

SECTION 4. APPLICATION
REQUIREMENTS IN GENERAL
Each application for an allocation of
the Tribal Economic Development Bond
volume cap under § 7871(f)(1) (“Application”) must be prepared and submitted
in accordance with this section. In order
for an Application to comply with this
section, among other things, the Application must be prepared in substantially
the form attached to this notice as Appendix A, subject to such minor changes
or variations as the IRS and the Treasury
Department may approve in their discretion. This notice, including Appendix
A, may be found on the IRS web site
at http://www.irs.gov/taxexemptbond/index.html or http://www.irs.gov/pub/irsdrop/. By submitting an Application, the
applicant agrees to comply with the requirements of this notice.
a. Qualified issuer. An Application
must be submitted by an Indian tribal government. Section § 7701(a)(40)(A) defines an Indian tribal government as the
governing body of any tribe, band, community, village, or group of Indians, or
Alaska Natives, which is determined by
the Secretary, after consultation with the
Secretary of the Interior, to exercise governmental functions. Section 2.01 of Revenue Procedure 2008–55, 2008–39 I.R.B.
768, provides that an Indian tribal entity
that appears on the most recent list published by the Department of the Interior in
the Federal Register pursuant to the Federally Recognized Indian Tribe List Act of
1994, Pub. L. 103–454, 108 Stat. 4791
(“List Act”), is designated an Indian tribal
government for purposes of § 7701(a)(40).
Section 2.03 of Rev. Proc. 2008–55 further provides that a tribe that does not appear on the most recent list published by
the Department of the Interior in the Federal Register pursuant to the requirements
of the List Act nonetheless will be treated
as an Indian tribal government for purposes of § 7701(a)(40) if the tribe has been
acknowledged as a federally recognized
Indian tribe, as stated in a letter from the
Department of the Interior. An Application must identify the Indian tribal government, including the Indian tribal government’s Federal tax identification number,
and either: (1) state that the entity is included on the most recent list published
by the Department of the Interior in the

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Federal Register pursuant to the List Act,
or (2) provide the letter from the Department of the Interior stating that the tribe
has been acknowledged as a federally recognized Indian tribe.
b. Signatures. An Application must
be signed and dated by, and must include
the printed name and title of, an authorized
official of the Indian tribal government.
For purposes of this notice, the term “authorized official of the Indian tribal government” means an officer, board member, employee, or other official of the Indian tribal government who is duly authorized to execute legal documents on behalf of the Indian tribal government in connection with incurring debt of the Indian
tribal government (e.g., a tribal chairperson, chief executive officer, or chief financial officer), similar to the kind of duly authorized official of an Indian tribal government who would be authorized to execute documents in connection with an
Indian tribal government’s declaration of
official intent to reimburse expenditures
from the proceeds of a borrowing under
§ 1.150–2(e).
c. Contact person. An Application
must designate one or more persons with
knowledge of the project that the qualified
issuer duly authorizes to discuss with the
IRS any information relating to the Application. The designation must include the
designee’s name, title, telephone number,
fax number, and mailing address. If a designee is not an official or officer of the issuer, the Application must include an executed Form 8821 (Taxpayer Information
Authorization) or Form 2848 (Power of Attorney and Declaration of Representative)
authorizing the disclosure of taxpayer information specifically relating to the Application.
d. Addresses. An Application must
be submitted by hard copy in duplicate
accompanied by a copy of the Application in electronic format on compact disc
(“CD”) sent by mail to the Internal Revenue Service (IRS), SE:T:GE:TEB:CPM,
Attention: Mark Helfer, 1122 Town &
Country Commons, St. Louis, Missouri
63017.
e. Due date. To receive an allocation
from the first $1 billion of volume cap being allocated (“First Allocation”), an Application must be filed with the IRS on or
before the Application deadline of August
15, 2009 (“First Allocation Deadline”). To

July 13, 2009

receive an allocation from the remaining
volume cap (“Second Allocation”), an Application must be filed with the IRS after
August 15, 2009, and on or before January
1, 2010 (“Second Allocation Deadline”).
See section 7 for further discussion of the
two allocations.
f. Project description. Each Application must contain the information required
by this subsection f.
(i) Qualified project. Each Application must describe in reasonable detail the
project to be financed with the proceeds
of the Tribal Economic Development
Bonds. The Application must indicate
the expected date that the acquisition and
construction of the project will commence
and the expected date that the project will
be placed in service.
(ii) Location of project. The Application must include a certification that the
project’s location is within the Indian tribal
government’s reservation.
(iii) Project not used for gaming purposes. The Application must contain a certification that no portion of the proceeds of
any Tribal Economic Development Bonds
issued pursuant to the application will be
used to finance any portion of a building
in which class II or class III gaming, as
defined in section 4 of the Indian Gaming
Regulatory Act, is conducted or housed,
or any other property actually used in the
conduct of such gaming. For a safe harbor
standard regarding certain determinations
with respect to separate buildings, see section 10 of this notice.
(iv) Regulatory approvals. The Application must state whether all necessary
Federal, State and local regulatory approvals for the project have been obtained
and, if those approvals have not yet been
obtained, the Application must describe
the Indian tribal government’s plan for
obtaining them and the time frame during
which the Indian tribal government expects to receive them.
g. Plan of financing. The Application
must contain (1) a reasonably detailed
description of the plan of financing for the
project, including all reasonably expected
sources (e.g., a public offering through a
named underwriter or a private placement
to a named institution) and uses of financing, including financing from the Tribal
Economic Development Bonds and from
other sources, (2) the status of all financing, including the name and addresses of

July 13, 2009

all entities expected to provide any financing, (3) the anticipated date of issuance of
the Tribal Economic Development Bonds
and any expected purchasers of the Tribal
Economic Development Bonds, (4) the
sources of security and repayment for the
Tribal Economic Development Bonds,
(5) the aggregate face amount of Tribal
Economic Development Bonds expected
to be issued for the project, and (6) the
issuer’s reasonably expected schedule for
spending proceeds of the Tribal Economic
Development Bonds. If the Indian tribal
government intends to use the proceeds
of Tribal Economic Development Bonds
to reimburse amounts paid with respect to
a qualified project, the Application must
demonstrate that the requirements under
§ 1.150–2 of the Income Tax Regulations
will be met.
h. Dollar amount of allocation requested. The Application must specify the
dollar amount of the volume cap requested
for the project.
i. Statement of readiness to issue. An
Application for an allocation of volume
cap from the First Allocation must contain
the statement that the issuer reasonably expects to issue any Tribal Economic Development Bonds, pursuant to the requested
allocation of volume cap, on or before December 31, 2010. An Application for an
allocation of volume cap from the Second
Allocation must contain a statement that
the issuer reasonably expects to issue any
Tribal Economic Development Bonds pursuant to the requested allocation of volume
cap on or before December 31, 2011.
SECTION 5. REQUIRED
DECLARATIONS IN APPLICATIONS
Each Application submitted under this
notice must include the following declaration signed and dated by an authorized official of the Indian tribal government: “Under penalties of perjury, I declare that I
have examined this document and, to the
best of my knowledge and belief, all of the
facts contained herein are true, correct, and
complete.”
SECTION 6. CONSENT TO
DISCLOSURE OF ALLOCATION
In order to provide the public with information on how the volume cap has been
allocated and to facilitate oversight of the

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Tribal Economic Development Bond program, the IRS intends to publish the results of the allocation process. The information will be most useful to the public if it identifies the specific allocations
awarded. Pursuant to § 6103, consent is
required in order for the IRS to disclose
identifying information with respect to applicants awarded an allocation. Therefore,
the IRS requests that each applicant submit
with the Application a declaration, consenting to the disclosure by the IRS of the
name of the issuer, the type and location of
the project that is the subject of the Application, and the amount of the Tribal Economic Development Bond volume cap allocation awarded to that applicant if the
Applicant receives an allocation. To provide valid consent, the declaration must be
in the form set forth in Appendix B. An applicant is not required to provide a declaration consenting to disclosure in order to receive an allocation. The IRS will not publish identifying information with respect to
applications that are not awarded an allocation of volume cap or while applications
are pending.
SECTION 7. VOLUME
CAP ALLOCATIONS AND
METHODOLOGY
a. First Allocation. Tribal Economic
Development Bond volume cap under
§ 7871(f) will be allocated in at least two
tranches. The first $1 billion in volume
cap will be allocated in accordance with
this section for qualified projects for which
Applications meeting the requirements of
this notice have been filed with the IRS on
or before the First Allocation Deadline. If
the total amount of volume cap requested
in all applications received on or before
the First Allocation Deadline does not exceed $1 billion then each qualified project
will be allocated the amount of volume
cap requested, and any amount of the first
$1 billion in volume cap remaining will
be available for allocation as part of the
Second Allocation. If the total amount of
volume cap requested in all applications
received on or before the First Allocation Deadline exceeds $1 billion, than
each qualified project will be allocated
the amount of volume cap requested reduced pro rata such that the total amount
allocated as part of the First Allocation
does not exceed $1 billion. Applicants

2009–28 I.R.B.

receiving a reduced allocation may submit
an application requesting the remainder of
the allocation before the Second Allocation Deadline.
b. Second Allocation.
(1)The Second Allocation will allocate
the second $1 billion plus any portion of
the first $1 billion not allocated as part
of the First Allocation (the “Second Allocation Amount”). The Second Allocation will be allocated in accordance with
this section for qualified projects for which
applications meeting the requirements of
this notice have been filed with the IRS
on or before the Second Allocation Deadline set forth in this notice. If the total
amount of volume cap requested in all applications received on or before the Second Allocation Deadline does not exceed
the Second Allocation Amount, then each
applicant will be allocated the amount of
volume cap requested and any volume cap
remaining may be available for allocation
by the IRS as part of an allocation process
to be announced by the IRS at some future
date. If the total amount of volume cap requested in all applications received on or
before the Second Allocation Deadline exceed the Second Allocation Amount then
each applicant will be allocated the amount
of volume cap requested reduced pro rata
such that the total amount allocated as part
of the Second Allocation does not exceed
the Second Allocation Amount.
(2) Applicants for any subsequent allocation other than the First Allocation must
include a description of the project, or any
related project, for which a prior allocation was made, as well as the name of the
applicant that received the allocation. For
this purpose, related projects include facilities that are owned by the same Indian
tribal government, a political subdivision
of the Indian tribal government, or an entity controlled by the Indian tribal government, which are (i) located at or near the
same site, and (ii) are integrated, interconnected, or directly or indirectly dependent
on each other based on all the facts and circumstances
c. Limit on amounts awarded to any
one Indian tribal government. No Indian
tribal government will be awarded allocations from the First Allocation for a total
amount exceeding $30 million. For purposes of this limitation, an Indian tribal
government includes the Indian tribal government, as well as political subdivisions

2009–28 I.R.B.

of, and other entities controlled by, the Indian tribal government. Although the IRS
expects that a similar limitation will apply
to amounts allocated as part of the Second
Allocation, or any subsequent allocation,
the IRS reserves the right to raise or lower
the limitation or abolish it entirely.
d. Joint projects. An Indian tribal government may submit an application for an
allocation to finance the Indian tribal government’s share of a joint project all of
which will be owned by Indian tribal governments or which will, in part, be owned
by an entity that is not an Indian tribal
government, provided that the joint project
will be located entirely on one or more
of the reservations of any of the Indian
tribal governments receiving an allocation
with respect to such project. For this purpose, the type of joint ownership of facilities to be financed with Tribal Economic Development Bonds include only
those recognized under the private activity bond restrictions on tax-exempt bonds
under § 141.
e. On behalf of issuers.
(1) An Indian tribal government that receives an allocation may designate an “on
behalf of issuer,” within the rules applicable to bonds issued under § 103, to issue
the Tribal Economic Development Bonds
on its behalf.
(2) An Indian tribal government that receives an allocation may assign the allocation to a pool bond issuer who is otherwise
an Indian tribal government for the purpose of issuing Tribal Economic Development Bonds the proceeds of which will be
loaned to the Indian tribal government who
received the allocation. Pooled Tribal Economic Development Bonds will be subject
to the provisions of § 149(f).
(3) The proceeds of any bonds issued
by an “on behalf of” issuer or a pool issuer
will be treated as if they were proceeds of
bonds issued by the Indian tribal government that received the allocation.
f. Forfeiture of allocation. If bonds are
not issued by December 31, 2010, for any
or all of the allocation received by an issuer
pursuant to the First Allocation, then such
allocation is treated as forfeited. If bonds
are not issued by December 31, 2011, for
any or all of the allocation received by
an issuer pursuant to the Second Allocation, then such allocation is treated as forfeited. Any allocation amounts treated as
forfeited may be available for allocation

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by the IRS as part of an allocation process
to be announced by the IRS at some future date. Issuers must notify the IRS at
least 30 days before the expiration of the
period during which bonds may be issued
pursuant to an allocation if they do not intend to issue bonds pursuant to such allocation.
SECTION 8. INSUBSTANTIAL
DEVIATIONS FROM APPLICATION
PROVISIONS
Generally, any allocation of Tribal Economic Development Bond volume cap is
valid for purposes of § 7871, if bonds are
issued pursuant to an allocation and are
used to finance the project described in
the Application. An allocation of Tribal
Economic Development Bond volume
cap is also valid notwithstanding insubstantial deviations from the information
submitted in the Application. Whether a
deviation with respect to the information
submitted in the Application is insubstantial is determined based on all the facts
and circumstances using criteria similar to those used under § 5f.103–2(f)(2)
and Prop. Reg. § 1.147(f)–1(b)(6), as
amended from time to time, relating to the
insubstantial deviation in the information
required for public approval of an issue
of tax-exempt bonds under § 147(f) of
the Code. Applications for approval of
specific insubstantial deviations must be
submitted by hard copy and in electronic
format on CD sent by mail to Internal Revenue Service (IRS), SE:T:GE:TEB:CPM,
Attention: Mark Helfer, 1122 Town &
Country Commons, St. Louis, Missouri
63017. An Application for approval of
a specific insubstantial deviation must
include: (a) a detailed description of the
proposed deviation, (b) facts establishing
the continued technical viability of the
project and that no other taxpayer, State
or local government or Indian tribal government will be prejudiced, (c) a copy of
the allocation letter issued by the IRS, and
(d) a declaration pursuant to section 5 of
this notice signed by an authorized person
in accordance with section 4.b. of this
Notice.
SECTION 9. INFORMATION
REPORTING
Subject to updated IRS information
reporting forms or procedures, an issuer

July 13, 2009

of Tribal Economic Development Bonds
should complete Part II of Form 8038–G
by checking the box on Line 18 (Other),
writing “Tribal Economic Development
Bonds” in the space provided for the bond
description, and entering the issue price of
the Tribal Economic Development Bonds
in the Issue Price column. For purposes of
this notice, the term “issue” has the meaning used for tax-exempt bond purposes in
§ 1.150–1(c).
SECTION 10. RELIANCE ON
NOTICE AND INTERIM GUIDANCE
(a) Generally
Pending the promulgation and effective date of applicable future regulations or
other public administrative guidance, tax-

July 13, 2009

payers may rely on the interim guidance
provided in this notice.
(b) Safe Harbor Definition of Building
Section 7871(f)(3)(B) provides that the
term Tribal Economic Development Bond
does not include any bond issued as part
of an issue if any portion of the proceeds
of the issue are used to finance any portion of a building in which class II or
class III gaming (as defined in section 4
of the Indian Gaming Regulatory Act) is
conducted or housed or any other property actually used in the conduct of those
classes of gaming. As a safe harbor, a
structure will be treated as a separate building if it has an independent foundation,
independent outer walls and an independent roof. Connections (e.g., doorways,
covered walkways or other enclosed common area connections) between two adja-

132

cent independent walls of separate buildings may be disregarded as long as such
connections do not affect the structural independence of either wall.
SECTION 11. DRAFTING
INFORMATION
The principal authors of this notice are
Aviva M. Roth and Timothy L. Jones of the
Office of Associate Chief Counsel (Financial Institutions and Products). However,
other personnel from the IRS and Treasury
participated in its development. For further information regarding this notice, contact Aviva M. Roth or Timothy L. Jones at
(202) 622–3980 (not a toll-free call). For
further information about submitted Applications, contact Mark Helfer at (636)
255–1201 (not a toll-free call).

2009–28 I.R.B.

APPENDIX A
APPLICATION FOR ALLOCATION OF
TRIBAL ECONOMIC DEVELOPMENT BOND VOLUME CAP
Internal Revenue Service
SE:T:GE:TEB:CPM
Attention: Mark Helfer
1122 Town & Country Commons
St. Louis, Missouri 63017
Dear Sir or Madam:
The following constitutes the application (“Application”) of (Name) (the “Applicant”) for allocation of tribal economic
development bond (“Tribal Economic Development Bond”) volume cap under § 7871(f) of the Internal Revenue Code (the
“Code”) (unless otherwise noted, section references herein are to the Code) to finance the project described below. (If a single
Application is used to request Tribal Economic Development Bond volume cap for more than one project, then all of the required
information in the Application must be provided separately for each project.)
1.

Name of Applicant/Issuer
Street Address
City

State

Zip

Telephone Number

Fax Number

EIN
2.

Status of Issuer — (Select as appropriate)
The Applicant/Issuer is a “qualified issuer” under § 7871(f) because it is —
(i) an Indian tribal entity that appears on the most recent list published by the Department of Interior in the
Federal Register pursuant to the Federally Recognized Indian Tribe List Act of 1994, Pub. L. 103–454, 108
Stat. 4791 (“List”), as demonstrated by the attached documents included as Exhibit A.
(ii) an Indian tribal government which is acknowledged as a federally recognized Indian tribe, as stated in a
letter from the Department of the Interior, as demonstrated by the attached documents included as Exhibit A.

3.

Name of Project

4.

Detailed Description of the Project. A reasonably detailed description of the facility to be financed (the “Project”)
is set forth below or in attached Exhibit B.

If the Project is a joint Project, please describe in detail the other owners of the project and the applicant’s ownership
interest in the project.
5.

Construction Commencement Date and Placed in Service Date. The Applicant begun or expects to begin the
construction, installation and equipping of the Project on
. The Applicant expects that the
Project will be placed into service on or before
.

6.

Pool Issuances. Does the Applicant expect to have the Tribal Economic Development Bonds issued by a pool issuer
or an “on behalf of issuer”?

If the answer above is yes, please describe the pool issuer or on behalf of issuer and provide a statement that the pool
issuer is an Indian tribal government or that the “on behalf of issuer” meets the requirements to be such an issuer under the
rules applicable to bonds issued under § 103.

2009–28 I.R.B.

133

July 13, 2009

7.

Location of the Project:
Project address or physical location (do not include postal box numbers or mailing address)
City

State

Zip

Reservation where Project will be located:
Include in the attached Exhibit C, a certification that the Project will be located on the Applicant’s reservation. If the Tribal
Economic Development Bonds will be issued for a joint project please include in attached Exhibit C a certification that the Project
will be located on a reservation of at least one of the Indian tribal governments receiving an allocation with respect to such Project.
8.

Information with respect to gaming.

Include in the attached Exhibit D a certification that no portion of the proceeds of any bonds issued pursuant to the requested
application will be used to finance any portion of a building in which class II or class III gaming (as defined in section 4 of the
Indian Gaming Regulatory Act) is conducted or housed, or any other property actually used in the conduct of such gaming.
9.

Individual to contact for more information about the Project:
Individual Name
Company Name
Street Address
City

State

Zip

Telephone Number
Fax Number
Email Address
(Include as appropriate) The contact person is not an authorized official or officer of the Applicant and a properly
executed Form 8821 (or Form 2848) is included with this Application that authorizes the disclosure by the IRS of
information that relates to this Application and the Project(s) described above to the contact person.
10.

Regulatory Approvals. Identify each regulatory body, the action that must be taken, status of any pending action
and the remaining timeframe required to obtain each required approval. The plan of the Applicant for obtaining
such approvals is as follows: (or attach an Exhibit)

11.

Plan of Financing. Include a reasonably detailed description of the plan of financing for the Project, including all
reasonably expected sources and uses of financing and other funds, the status of such financing, the anticipated
date of bond issuance, the sources of security and repayment for the bonds, the aggregate face amount of bonds
expected to be issued for the Project, and the issuer’s reasonably expected schedule for spending proceeds of the
Tribal Economic Development Bonds. Attached as Exhibit E is a plan of financing for the Project.

12.

Statement of Readiness.
a. Application for volume cap from the First Allocation. Include in Exhibit F a statement signed under
penalties of perjury that the Issuer reasonably expects to issue bonds pursuant to the requested allocation
by December 31, 2010.
b. Application for volume cap from the Second Allocation. Include in Exhibit F a statement signed under
penalties of perjury that the Issuer reasonably expects to issue bonds pursuant to the requested allocation
by December 31, 2011.

13.

Reimbursements. (For reimbursements, include the following statement.) The Applicant intends to use the proceeds
of Tribal Economic Development Bonds to reimburse costs of the Project in accordance with § 1.150–2. (In addition,
the Applicant must demonstrate that the requirements of § 1.150–2 will be met.

14.

Refundings. (For refundings or refinancings, include the following statement.) The Applicant intends to use the
proceeds of Tribal Economic Development Bonds to refund or refinance prior debt in circumstances that would
qualify for a refunding or refinancing with tax-exempt bonds by a State or local government under § 103. (In addition,
the Applicant must demonstrate that applicable requirements for such a refunding or refinancing issue will be met.)

15.

Dollar Amount of Allocation Requested for the Project. To finance the Project, the Applicant hereby requests a
Tribal Economic Development Bond allocation in the amount of $
.

July 13, 2009

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2009–28 I.R.B.

16.

Prior Allocations for the Project. (If the Project or any Related Project (as defined in section 7.b.(2) of this Notice)
previously received an allocation of Tribal Economic Development Bond volume cap under § 7871(f) of the Code,
then this paragraph must include a statement to that effect.) [If applicable, include the following statement: On
(Insert date), the Project previously received a Tribal Economic Development Bond volume cap allocation in the
amount of $
. A copy of the IRS allocation letter for that allocation is attached.]

17.

Assignment of allocations to another issuer. (If the applicant expects to assign its allocation to another qualified
issuer of Tribal Economic Development Bonds as authority for the Tribal Economic Development Bond issuer to
issue bonds for the project on behalf of the applicant, the applicant should provide the following statement:))
The Applicant expects to assign the requested allocation for Tribal Economic Development Bonds volume
cap to a qualified issuer of Tribal Economic Development Bonds as authority for the Tribal Economic
Development Bond issuer to issue bonds for the project on behalf of the Applicant. Applicant agrees to obtain
a written commitment from the assignee Tribal Economic Development Bond issuer that it is a qualified issuer
of Tribal Economic Development Bonds and that it will issue Tribal Economic Development Bonds for the
project within the time frame specified in the Application for the Applicant’s bonds.

18.

Penalty of Perjury Statement and Signatures
I hereby certify that I am an authorized officer or official of the Applicant, that I am duly authorized to execute legal
documents on behalf of the Applicant in connection with incurring debt, and that I am duly authorized to execute
legal documents on behalf of the Applicant in making this Application. Under penalties of perjury, I declare that
(i) I have knowledge of the relevant facts and circumstances relating to this Application and the Project(s), (ii) I
have examined this Application, and (iii) to the best of my knowledge and belief, all of the facts contained in this
Application are true, correct and complete.
By:
Name:
Title:
Date:

2009–28 I.R.B.

135

July 13, 2009

EXHIBIT A
DOCUMENTS REGARDING ISSUER STATUS AS AN INDIAN TRIBAL GOVERNMENT
(RESPONSE TO QUESTION 2 OF THE APPLICATION)
(Attached hereto)

July 13, 2009

136

2009–28 I.R.B.

EXHIBIT B
DESCRIPTION OF THE PROJECT
(RESPONSE TO QUESTION 4 OF THE APPLICATION)
(Attached hereto)

2009–28 I.R.B.

137

July 13, 2009

EXHIBIT C
PROJECT LOCATION ON INDIAN TRIBAL GOVERNMENT RESERVATION
(RESPONSE TO QUESTION 7 OF THE APPLICATION)

July 13, 2009

138

2009–28 I.R.B.

EXHIBIT D
STATEMENT WITH RESPECT TO GAMING
(RESPONSE TO QUESTION 8 OF THE APPLICATION)

2009–28 I.R.B.

139

July 13, 2009

EXHIBIT E
PLAN OF FINANCING
(RESPONSE TO QUESTION 11 OF THE APPLICATION)
(Attached hereto)

July 13, 2009

140

2009–28 I.R.B.

EXHIBIT F
STATEMENT OF READINESS TO ISSUE
(RESPONSE TO QUESTION 12 OF THE APPLICATION)
I hereby certify that I am an authorized officer or official of the Applicant, that I am duly authorized to execute legal documents
on behalf of the Applicant in connection with incurring debt, and that I am duly authorized to execute legal documents on behalf
of the Applicant in making this Application. Under penalties of perjury, I declare that the Applicant reasonably expects that bonds
issued pursuant to the Tribal Economic Development Bond allocation to be received will be issued by [enter either: December 31,
2010, or December 31, 2011, as applicable]
By:
Name:
Title:
Date:

2009–28 I.R.B.

141

July 13, 2009

EXHIBIT B
CONSENT TO PUBLIC DISCLOSURE
OF CERTAIN TRIBAL ECONOMIC DEVELOPMENT BOND
APPLICATION INFORMATION
In the event that the Application of [(Insert name of applicant here):
] (the “Applicant”) for an allocation
of authority to issue tribal economic development bonds (“Tribal Economic Development Bonds”) under section 7871(f) of the
Internal Revenue Code is approved, the undersigned authorized representative of the Applicant hereby consents to the disclosure
by the Internal Revenue Service through publication of a Notice in the Internal Revenue Bulletin or a press release of the name of
Applicant (issuer), the type and location of the facility that is the subject of the Application, and the amount of the allocation, if
any, of volume cap authority to issue Tribal Economic Development Bonds for such facility. The undersigned understands that
this information might be published, broadcast, discussed or otherwise disseminated in the public record.
This authorization shall become effective upon the execution hereof. Except to the extent disclosure is authorized herein,
the returns and return information of the undersigned taxpayer are confidential and are protected by law under the Internal
Revenue Code.
I certify that I have the authority to execute this consent to disclose on behalf of the taxpayer named below.
Date:

Signature:
Print name:
Title:

Name of Applicant-Taxpayer:
Taxpayer Identification Number:
Taxpayer’s Address:

Note: Treasury Regulations require that the Internal Revenue Service must receive this consent within 60 days after it is signed
and dated.

Reliance Criteria for Private
Foundations and Sponsoring
Organizations
Rev. Proc. 2009–32
SECTION 1. PURPOSE
This Revenue Procedure provides reliance criteria for private foundations
and sponsoring organizations that maintain donor advised funds in determining
whether a potential grantee is an organization described in section 509(a)(1), (2) or
(3) of the Internal Revenue Code (Code).
SECTION 2. BACKGROUND
The Pension Protection Act of 2006,
Pub. L. No. 109–208, 120 Stat. 780

July 13, 2009

(2006) (PPA) enacted new rules regarding grants by private foundations to certain
types of supporting organizations. Under
section 4942(g)(4) of the Code, as added
by the PPA, the term “qualifying distribution” does not include any amount paid by
a private nonoperating foundation to either (1) a Type III supporting organization (as defined in § 4943(f)(5)(A)) that is
not functionally integrated, or (2) a Type
I, Type II, or functionally integrated Type
III supporting organization if a disqualified person of the private foundation directly or indirectly controls such supporting organization or a supported organization of the supporting organization. In addition, under § 4945(d)(4)(A), as amended
by the PPA, a private foundation grant to
a supporting organization described in either (1) or (2) is a taxable expenditure under § 4945, unless the private foundation
exercises expenditure responsibility with

142

respect to the grant in accordance with
§ 4945(h).
The PPA also added § 4966 to the
Code, which imposes an excise tax on
a sponsoring organization (as defined in
§ 4966(d)(1)) for taxable distributions (as
defined in § 4966(c)). Section 4966(c)(1)
defines the term “taxable distribution”
to include any distribution from a donor
advised fund (as defined in § 4966(d)(2))
to a disqualified supporting organization,
unless the sponsoring organization exercises expenditure responsibility with
respect to the distribution in accordance
with § 4945(h). Section 4966(d)(4) defines the term “disqualified supporting
organization” as: (1) a Type III supporting organization that is not functionally
integrated, and (2) a Type I, Type II, or
functionally integrated Type III supporting
organization if the donor, donor advisor,
or related parties of the donor or donor
advisor directly or indirectly controls a

2009–28 I.R.B.