The IRS has issued a Technical Advice Memorandum that the Village Center Community Development District (VCCDD) is not a division of state or local government, and therefore is not a political subdivision for purposes of section 103 of the Internal Revenue Code. The basis of the decision is that the developer controlled the board of supervisors of VCCDD and therefore, regardless of any sovereign powers VCCDD might have, VCCDD was not a “division of state or local government.” The TAM states:
A governmental unit is inherently accountable, directly or indirectly, to a general electorate… In effect, § 103 relies, in large part, on the democratic process to ensure that subsidized bond financing is used for projects which the general electorate considers appropriate State or local government purposes… For these reasons, the mere delegation of a sovereign power is not sufficient to create a political subdivision.
NABL wrote to the IRS on October 16, 2012 of its concern that the IRS position:
is not supported by existing authority and could substantially undermine the market for Special District bonds, a long-standing form of financing utilized by a wide range of issuers in many States. … NABL is aware of no authority interpreting section 103(a) or any other provision of the Code where a governmental entity that has been delegated the authority to exercise a substantial amount of one or more of the sovereign powers has nonetheless been held not to be a political subdivision solely by reason of an insufficiently large number of voters participating in the election of its governing board. …If any interpretive change is to be proposed with respect to the definition of “political subdivision” to take into account the number of electors of a governmental entity, that proposal should be the subject of the public rulemaking process and applied on a prospective basis only.
The TAM is available here.
NABL’s letter to the IRS is available here.