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Interest expense related to tax-exempt obligations acquired between January 1983 and August 1986 is 20 percent disallowed and is calculated in a manner similar to that just described Certain quali ed tax-exempt obligations (generally, obligations issued by an entity that will not issue more than $10 million of tax-exempt obligations during the year and that are not private activity bonds) issued after August 1986 are treated as if issued prior to that date (ie, subject to the 20 percent disallowance rule rather than the 100 percent disallowance rule) (iv) Nonaccrual Loans Generally, interest on a loan must be accrued as income unless the taxpayer can demonstrate that the interest is uncollectible at the time of accrual The tax rule is dependent on the facts and circumstances for the nonaccrual loans at issue The FAS No 114 uses a probable test in determining when a loan is impaired When it is probable that a creditor will be unable to collect all amounts due according to the contractual terms of the loan agreement, the loan is considered impaired Use of this analysis may now provide substantiation of the tax treatment for impairment of loans (v) Hedging Financial institutions that are involved in hedging transactions treat the gain or loss from these transactions as ordinary for tax purposes A hedging transaction must be entered into primarily to manage a taxpayer s risk of interest rate changes, price changes, or currency uctuations A taxpayer must also have risk on an overall (or macro) basis A hedge of a single ordinary asset or liability will be respected if it is reasonably expected to manage the taxpayer s overall risk Hedges entered into as part of an overall risk reduction program also will qualify Fixed to oating hedges (eg, hedges that convert a xed-rate liability into a oating-rate liability) may satisfy the risk management requirement if, for example, a taxpayer s income varies with interest rates In addition, hedges entered into to reverse or counteract another hedging transaction may qualify for ordinary gain or loss treatment Because tax hedges are permissible only with ordinary property, hedges of mortgage servicing rights generally do not qualify as tax hedges, since mortgage servicing rights are generally capital assets Hedges of ordinary liabilities qualify as hedging transactions regardless of the use of the proceeds from the borrowing Consequently, gain or loss from a hedge of a liability used to fund the purchase of a capital asset will be ordinary However, recent guidance in the form of nal Treasury regulations provide that the purchase or sale of a debt instrument, an equity security, or an annuity contract is not hedging a transaction even if the transaction limits or reduces the taxpayer s risk The timing of the gain or loss from a hedging transaction must reasonably be matched with the gain or loss of the item being hedged This applies to global hedges and other hedges of aggregate risk If a taxpayer disposes of a hedged item but retains the hedge, the taxpayer may redesignate the hedge The taxpayer generally must mark-to-market the hedge on the date that the taxpayer disposes of the hedged item There are detailed contemporaneous identi cation and record-keeping requirements with which an institution must comply to support its treatment of hedging transactions Failure to comply could lead to characterization of losses from these transactions as capital losses (which may only be used to offset capital gains) (vi) Loan Origination Fees and Costs For nancial accounting purposes, SFAS No 91 requires that all loan origination fees (including loan commitment fees and points) be deferred and generally recognized over the life of the related loan or commitment period as an adjustment of yield For tax accounting purposes, loan fees received as cash payments incident to a lending transaction (eg, points) that represent an amount charged for the use of forbearance of money (rather than payment for services) are deferred Points received in connection with a lending transaction are applied as a reduction to the issue price of the loan and generally create original issue discount (OID) to be recognized over the life of the loan on a constant yield method In instances where the OID on a loan is de minimus (as de ned in regulations), the de minimus OID is recognized in proportion to principal payments received
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