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ARTICLE · 15 NOVEMBER 2011

Recent Developments Regarding Issuer Responsibility For Reviewing Initial Offering Prices Of Bonds

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

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Following the advent of Build America Bonds ("BABs") in 2009 and securities law rulemaking that has resulted in the posting of virtually instantaneous trading data on the EMMA website (msrb.emma.org) hosted by the Municipal Securities Rulemaking Board ("MSRB"), the IRS has repeatedly expressed concerns about how initial offering prices (a/k/a "issue prices") on municipal bonds are determined on the primary market and whether certifications of such prices for tax purposes are correct.

United StatesStrategy
Jeremy Spector
Jeremy Spector
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Following the advent of Build America Bonds ("BABs") in 2009 and securities law rulemaking that has resulted in the posting of virtually instantaneous trading data on the EMMA website (msrb.emma.org) hosted by the Municipal Securities Rulemaking Board ("MSRB"), the IRS has repeatedly expressed concerns about how initial offering prices (a/k/a "issue prices") on municipal bonds are determined on the primary market and whether certifications of such prices for tax purposes are correct.

Why the concern? Why has this concern been exacerbated in recent years? Why hasn't the IRS addressed its concern by publishing new regulations?

The "issue price" determines the yield, for tax purposes, on the bonds. The lower the issue price for bonds bearing a stated interest rate, the higher the yield. IRS regulations specify that the issue price for tax-exempt bonds is, for each maturity, the first price at which ten percent of bonds is sold to parties other than underwriters. For a

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