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Guidance Expected on Fannie Mae/Freddie Mac Takeovers

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Editor: Alistair M. Nevius, J.D.

The IRS has announced that it will provide guidance on the application of Sec. 382 (which deals with limitations on carryforward of losses after an ownership change) to the government’s takeover of lenders Fannie Mae and Freddie Mac (Notice 2008-76).

The Housing and Economic Recovery Act of 2008, P.L. 110-289, gave Treasury the authority to purchase obligations and securities of Fannie Mae and Freddie Mac, and Treasury exercised that authority on September 7, 2008, to take over those corporations.

When a loss company undergoes a change in control, Sec. 382 restricts the use of losses and other attributes of the company. The Service has announced that it will issue regulations under Sec. 382(m) to provide that the “testing date” in Regs. Sec. 1.382-2(A)(4) does not include any date on or after the date on which the United States acquires stock or an option to acquire stock in an acquisition under the Housing Act. This will preserve Fannie Mae’s and Freddie Mac’s losses going forward.