Sec. 382 After the Bailout

EXECUTIVE SUMMARY

• In an effort to ameliorate the current economic crisis, the federal government has created a number of programs, such as the Troubled Asset Relief Program (TARP), in which the government provides cash infusions to ailing corporations in return for equity interests in or debt instruments of the corporations.
• Without rules exempting its application, Sec. 382, which limits the use of a corporation’s existing net operating losses and net unrealized built-in losses against future income following an ownership change, would apply to many corporations receiving funds in these programs, thereby reducing their effectiveness.
• In order to prevent Sec. 382 from interfering with the various relief programs, Congress has passed legislation and the IRS has issued regulations and notices that provide exemptions from the application of Sec. 382 for qualifying corporations.

The current economic crisis has spawned a massive government effort to stabilize the economy. The administration’s initial efforts to rescue the economy from distress included a bailout of Fannie Mae and Freddie Mac under the Housing and Economic Recovery Act of 2008 (HERA)¹ and the Troubled Asset Relief Program (TARP) under the Emergency Economic Stabilization Act (EESA).²

Treasury issued several notices as part of the government’s response to the crisis. The notices allow relief from Sec. 382 for loss corporations acquired under TARP. They also provide relief for obligations and other securities issued by Fannie Mae and Freddie Mac in the recent bailout. The American Recovery and Reinvestment Act of 2009 (ARRA) ³ contained further changes affecting these notices and provided rules for transactions after February 16, 2009. The exhibit shows a timeline of these events.

Treasury continues to develop and implement programs under TARP in an attempt to restore stability and liquidity to the U.S. financial system. Some of the programs established under EESA are the Capital Purchase Programs (CPPs) for public issuers, private issuers, and S corporations; the Targeted Investment Program (TARP TIP); and the Automotive Industry Financing Program (TARP Auto).

This article examines the effects of these recent notices and new Sec. 382(n).

Fannie Mae and Freddie Mac Bailout

The Federal National Mortgage Association (FNMA), commonly known as Fannie Mae, was established as a federal agency in 1938 during the Depression and in 1968 became a stockholder-owned corporation chartered by Congress as a government-sponsored enterprise (GSE). Fannie Mae operates in the secondary market, buying mortgages, pooling them, and selling them to investors as mortgage-backed securities.⁴ Fannie Mae does not make home loans directly to consumers but rather functions as an intermediary in the U.S. secondary mortgage market. By purchasing and securitizing mortgages, Fannie Mae facilitates liquidity in the primary mortgage market by ensuring that funds are consistently available to the institutions that do lend money to homebuyers.⁵ The Federal Home Loan Mortgage Corporation (FHLMC), another GSE commonly known as Freddie Mac, was created in 1970 to expand the secondary market for mortgages in the United States.⁶

HERA created the Federal Housing Finance Agency (FHFA) to regulate the secondary mortgage markets. On September 7, 2008, James Lockhart, director of the FHFA, announced that Fannie Mae and Freddie Mac were being placed into conservatorship of the FHFA. As of 2008, Fannie Mae and Freddie Mac owned or guaranteed about half of the $12 trillion mortgage market in the United States.⁷  Conservatorship is a statutory process designed to stabilize troubled institutions with the objective of returning the entities to normal business operations. The FHFA will act as the conservator to operate the enterprises until they are stabilized.

In order to encourage market stability, ensure that each GSE maintains a positive net worth, and support GSE debt- and mortgage-backed security holders, Treasury entered into several agreements with the GSEs in conjunction with the conservatorship. The original agreements Treasury made with both GSEs specify that there will be an upfront issuance to Treasury of $1 billion of senior preferred stock with a 10% coupon from each GSE in exchange for future support and capital investments of up to $100 billion in each GSE. In addition, each GSE will immediately issue to Treasury warrants for the purchase of common stock representing an ownership stake of 79.9%, at an exercise price of one-thousandth of one U.S. cent per share and with a warrant duration of 20 years. Beginning in 2010, each GSE will pay a quarterly fee to Treasury. Other conditions of the agreements require that each GSE’s retained mortgage and mortgage-backed securities portfolio shall not exceed $850 billion as of December 31, 2009, and shall decline by 10% per year until it reaches $250 billion.⁸

On February 18, 2009, Treasury announced amendments to its previous agreements with the GSEs. The amount of future support and capital investments will increase from $100 billion to $200 billion in each GSE. In addition, each GSE’s retained mortgage and mortgagebacked securities portfolio shall not exceed $900 billion rather than the $850 billion original limit.⁹

Troubled Asset Relief Program

EESA gave Treasury broad powers to stabilize the financial system in the form of TARP. Treasury has implemented several programs under TARP to restore stability and liquidity to the U.S. financial system. In addition to the CPP, discussed below, Treasury has used TARP to stem failures in the automotive industry and has initiated the TARP TIP in which investments are made on a case-by-case basis to stabilize financial institutions.

Capital Purchase Program

The goal of the CPP is to unfreeze the credit markets and allow banks to lend and also attract additional private capital. The original plan was to purchase illiquid assets from troubled banks. However, with the worsening of the economy, the plan changed to the purchase of preferred stock from regulated banks and thrifts.¹⁰ Treasury’s announcement on October 14, 2008, included the details.

Under the program, Treasury will inject up to $250 billion in equity capital to banks in the form of senior preferred stock. The program will be available to qualifying U.S.-controlled banks, savings associations, and certain bank and savings and loan holding companies engaged only in financial activities that elected to participate before 5 p.m. (EDT) on November 14, 2008. The minimum subscription amount available to a participating institution is 1% of risk-weighted assets. The maximum subscription amount is the lesser of $25 billion or 3% of riskweighted assets.

In conjunction with the purchase of senior preferred shares, Treasury will receive warrants to purchase common stock with an aggregate market price equal to 15% of the senior preferred investment. Treasury will fund the senior preferred shares purchased under the program by year end 2008. In addition, participating banks must place limits on executive pay and golden parachute payments.¹¹ The CPP has been expanded to include public and private institutions and S corporations.

Effects of Sec. 382

The bailout plans described above involve government acquisition of stock in the troubled institutions and entities or possible capital infusions into these entities. The notices are designed to mitigate the potential adverse consequences of Sec. 382 on entities involved in these equity acquisitions.

Treasury has a long history of efforts to control the trafficking of loss carryovers. Sec. 382 was enacted as part of the Tax Reform Act of 1986¹² to prevent tax-motivated acquisitions of loss corporations. In general, it limits the use of a corporation’s existing net operating losses and net unrealized built-in losses against future income following an ownership change. Under Sec. 382(g), an ownership change occurs if, after an owner shift involving a 5% shareholder or an equity structure shift, the percentage of stock of the new loss corporation owned by one or more 5% shareholders has increased by more than 50 percentage points over the lowest percentage of the old loss corporation’s stock owned by the same shareholders at any time during the testing period— generally the three-year period ending on the day of the shift. Regs. Sec. 1.382-2(a) (4) defines the testing date as the date on which the loss corporation is required to determine if an ownership change has occurred. A loss corporation is required to determine whether an ownership change has occurred immediately after any owner shift or issuance or transfer of an option with respect to stock of the loss corporation that is treated as exercised under Regs. Sec. 1.382-4(d)(2).

If an ownership change has occurred, Sec. 382(a) limits the amount of prechange net operating losses or net unrealized built-in losses that the new loss corporation may use annually to offset post-change taxable income to the equity value of the old loss corporation immediately before the ownership change multiplied by the long-term tax-exempt rate. Sec. 382(l)(1) contains guidance on the effect of capital contributions on the Sec. 382(a) limitation. A ny capital contribution received by an old loss corporation as part of a plan a principal purpose of which is to avoid or increase the Sec. 382 limitation will not be taken into consideration. In addition, a ny capital contribution made during the two-year period ending on the change date is presumed to be part of a plan.

Sec. 382(m) authorizes Treasury to issue regulations as needed to carry out this section.

Notices Issued by Treasury

As discussed below, Treasury quickly issued several notices in the last quarter of 2008 concerning Sec. 382(l)(1) capital contributions, built-in losses of banks, testing dates for corporations owned by the U.S. government, and the treatment of stock and options purchased by the Department of Treasury under the CPP. Another notice issued in early 2009 expanded the application to additional programs created under the authority of EESA.

Notice 2008-76

Notice 2008-76,¹³ the first of the notices that affect Sec. 382, relates to HERA and Treasury’s preferred stock purchase and stock warrant agreements with Fannie Mae and Freddie Mac that occurred along with the conservatorship on September 7, 2008. This notice indicates that the IRS will issue regulations under Sec. 382(m) regarding the determination of the testing date for ownership changes addressed by Sec. 382. The regulations will redefine “testing date” to exclude any date on or after the date on which the U.S. government or its agencies acquired stock or options to acquire stock in the corporation. In effect, the regulations will prevent these acquisitions from resulting in a testing date that could trigger the Sec. 382 loss limitation rules. The regulations described in this notice will be effective on or after September 7, 2008, and will apply until there is additional guidance.

The notice specifically includes purchases of stock described under Sec. 1504(a)(4), which discusses certain preferred stock. This seems contradictory because Sec. 382(k)(6)(A) indicates that the term “stock” means stock other than that described in Sec. 1504(a)(4). Another question arises as to treatment of future transactions if the GSEs survive and emerge from conservatorship and Treasury sells its stock. Presumably new regulations would be issued to deal with such a situation.

Notice 2008-78

The second notice affecting Sec. 382, Notice 2008-78,¹⁴ indicates that the IRS will issue regulations under Sec. 382(l)(1) (B) that will change the treatment of capital contributions made to a loss corporation in the two years preceding an ownership change. According to this notice, a capital contribution made within two years of the change date will not automatically be presumed to be made as part of a plan to avoid or increase the Sec. 382 limitation. In addition, the determination as to whether a capital contribution is part of a plan to avoid or increase a Sec. 382 limitation depends on the facts and circumstances, unless the contribution is described in one of the four safe harbors put forth in the notice.

Under the following safe harbors, a capital contribution will not be considered part of a plan when:

• The contribution is made by a person who is neither a controlling shareholder (determined immediately before the contribution) nor a related party; no more than 20% of the total value of the loss corporation’s outstanding stock is issued in connection with the contribution; there was no agreement, understanding, arrangement, or substantial negotiation at the time of the contribution regarding a transaction that would result in an ownership change; and the ownership change occurs more than six months after the contribution.
• The contribution is made by a related party, but no more than 10% of the total value of the loss corporation’s stock is issued in connection with the contribution, or the contribution is made by a person other than a related party; in either case there was no agreement, understanding, arrangement, or substantial negotiation at the time of the contribution regarding a transaction that would result in an ownership change; and the ownership change occurs more than one year after the contribution.
• The contribution is made in exchange for stock issued in connection with the performance of services, or stock acquired by a retirement plan, under the terms and conditions of Regs. Sec. 1.355-7(d)(8) or (9), respectively.
• The contribution is received on the formation of a loss corporation (not accompanied by the incorporation of assets with a net unrealized built-in loss) or is received before the first year from which there is a carryforward of a net operating loss, capital loss, excess credit, or excess foreign taxes (or in which a net unrealized built-in loss arose).¹⁵

The fact that a contribution is not described in one of the above safe harbors is not evidence that the contribution is part of a plan. These rules apply to ownership changes that occur in any tax year ending on or after September 26, 2008.

In Notice 2008-78, the IRS specifically requested comments about the scope and application of Sec. 382(l)(1) and the safe harbors. This request for comments suggests that the forthcoming regulations could differ from the rules in the notice. The regulations could expand the safe harbors or change the effective date to allow retroactive relief.

The narrow list of safe harbors poses many questions that must be addressed based on facts and circumstances. Many situations arise in which a business could experience an inadvertent infusion of cash that is not specifically covered by any of these safe harbors. For example, a need for cash to meet payroll would be an obvious circumstance that the IRS should not characterize as an ownership change, but a shareholder loan to the corporation that is never repaid could come under IRS scrutiny and is not covered by the notice. Hopefully, the promised regulations will provide more assistance for working capital needs and other inadvertent infusions of cash.

Notice 2008-83

Notice 2008-83,¹⁶ another notice encouraging bank acquisitions, provides that after an ownership change under Sec. 382(g), any deduction by a bank for losses on loans or bad debts will not be treated as a built-in loss or deduction attributable to periods prior to the ownership change. Such losses would not be subject to the limitation on built-in losses under Sec. 382(h). Under this notice, tax benefits to acquirers of banks could be significant. Section 3 of the notice states that banks may rely on the treatment set forth in the notice unless and until the IRS issues additional guidance.

This notice apparently helped facilitate Wells Fargo’s acquisition of Wachovia,¹⁷ but it raised a number of questions regarding its effective date and general application. Because there appears to be no specific authority for the rule in Notice 2008-83 that disregards the language of Sec. 382, several members of Congress questioned Treasury’s authority to issue the notice, and Congress negated the effect of the notice in Section 1261 of the ARRA. The act states, “Section 382(m) does not authorize the Secretary to provide exemptions or special rules that are restricted to particular industries or classes of taxpayers.”¹⁸

Under the act, Notice 2008-83 will be deemed to have the force and effect of law only with respect to any ownership change occurring on or before January 15, 2009, or for binding contracts entered into on or before that date. The notice has no force or effect after January 16, 2009.

Notice 2008-84

Notice 2008-84¹⁹ is similar to Notice 2008-76 in that it changes the meaning of “testing date” as put forth in Regs. Sec. 1.382-2(a)(4). The IRS will issue regulations under Sec. 382(m) that address government acquisitions other than those covered by Notice 2008-76. The term “testing date” for ownership changes will not include any date in which the United States directly or indirectly owns more than a 50% interest in the loss corporation. In effect, the regulations will prevent these changes from resulting in a testing date that could trigger the Sec. 382 loss limitation rules. The regulations will be effective for any tax year ending on or after September 26, 2008.

An unresolved issue under this notice is the determination of the testing date as the United States reduces its ownership interest to less than 50% as anticipated in the future.

Notice 2008-100

Notice 2008-100²⁰ sets forth the following guidance on the application of Sec. 382 to loss corporations whose instruments the Treasury specifically acquires under the CPP:

General rule: With respect to any shares of stock of a loss corporation acquired by Treasury under the CPP (either directly or upon the exercise of an option), the ownership represented by such shares on any date on which they are held by Treasury will not be considered to have caused Treasury’s ownership in the loss corporation to have increased over its lowest percentage owned on any earlier date. Subject to exceptions, such shares are considered outstanding for purposes of determining the percentage of loss corporation stock owned by other 5% shareholders on a testing date.

Redemptions of stock owned by Treasury: For purposes of measuring shifts in ownership by any 5% shareholder on any testing date occurring on or after the date on which the loss corporation redeems shares of its stock held by Treasury that were acquired under the CPP, the shares so redeemed are treated as if they had never been outstanding.

Treatment of preferred stock acquired by Treasury under the CPP: For all federal income tax purposes, any preferred stock of a loss corporation acquired by Treasury under the CPP, whether owned by Treasury or another person, is treated as stock described in Sec. 1504(a)(4).

Treatment of warrants acquired by Treasury under the CPP: For all federal income tax purposes, any warrant to purchase stock of a loss corporation that is acquired by Treasury under the CPP, whether held by Treasury or another person, is treated as an option (and not as stock).

Options held by Treasury not deemed exercised: For Regs. Sec. 1.382-4(d), any option (within the meaning of Regs. Sec. 1.382-4(d)(9)) held by Treasury that is acquired under the CPP will not be deemed exercised under Regs. Sec. 1.382-4(d)(2).

Sec. 382(l)(1) not applicable to capital contributions made by Treasury to a loss corporation under the CPP: For purposes of Sec. 382(l)(1), any capital contribution made by Treasury to a loss corporation under the CPP will not be considered to have been made as part of a plan a principal purpose of which was to avoid or increase any Sec. 382 limitation.²¹

The end result of Notice 2008-100 is that the loss limitation rules of Sec. 382 generally will not apply as a result of ownership changes due to acquisition of stock, options, or warrants of a loss corporation by Treasury or due to capital contributions by Treasury. The rules in Notice 2008-100 will apply unless there is additional guidance. Unlike previous notices regarding Sec. 382, this notice contains a grandfather clause stating that any future contrary guidance will not apply to capital purchases made by Treasury prior to the publication of such guidance or under a written binding agreement entered into prior to the publication of such guidance.

The following potential issues may result from this notice:

• The “for all federal income tax purposes” wording in the above paragraphs about treatment of preferred stock and warrants seems a bit broad. Was this intended to apply to all other areas such as consolidations, etc.?
• What happens when Treasury eventually sells the stock, as anticipated by the program?

Notice 2009-14

Notice 2009-14²² amplifies and supersedes Notice 2008-100, discussed above. Notice 2009-14 broadens the guidance on the application of Sec. 382 to other purchase programs under EESA, including public, private, and S corporation CPPs, TARP TIP, and TARP Auto (collectively referred to as the programs). It addresses the treatment of Treasury acquisitions of debt and preferred stock, warrants, stock (other than preferred), and redemptions of stock from Treasury as follows:

Treatment of indebtedness and preferred stock acquired by Treasury: For all federal income tax purposes, any instrument issued to Treasury under the programs, whether owned by Treasury or subsequent holders, will be treated as an instrument of indebtedness, if denominated as such, and as stock described in Sec. 1504(a)(4), if denominated as preferred stock. Any amount received by an issuer under the programs will be treated as received, in its entirety, as consideration in exchange for the instruments issued. No such instrument shall be treated as stock for purposes of Sec. 382 while held by Treasury or other holders, except that preferred stock will be treated as stock for purposes of Sec. 382(e)(1).

Treatment of warrants acquired by Treasury: For all federal income tax purposes, any warrant to purchase stock acquired by Treasury under the Public CPP, TARP TIP, and TARP Auto, whether owned by Treasury or subsequent holders, will be treated as an option (and not as stock). While held by Treasury, such warrant will not be deemed exercised under Regs. Sec. 1.382-4(d)(2). For all federal income tax purposes, any warrant to purchase stock acquired by Treasury under the Private CPP will be treated as an ownership interest in the underlying stock, which shall be treated as preferred stock described in Sec. 1504(a)(4). For all federal income tax purposes, any warrant acquired by Treasury under the S Corp CPP will be treated as an ownership interest in the underlying indebtedness.

Sec. 382 treatment of stock acquired by Treasury: For purposes of Sec. 382, with respect to any stock (other than preferred stock) acquired by Treasury under the programs (either directly or upon the exercise of a warrant), the ownership represented by such stock on any date on which it is held by Treasury will not be considered to have caused Treasury’s ownership in the issuing corporation to have increased over its lowest percentage owned on any earlier date. Except as described below, such stock is considered outstanding for purposes of determining the percentage of stock owned by other 5% shareholders on a testing date.

Sec. 382 treatment of redemptions of stock from Treasury: For purposes of measuring shifts in ownership by any 5% shareholder on any testing date occurring on or after the date on which the issuing corporation redeems stock held by Treasury that was acquired under the programs (either directly or upon the exercise of a warrant), the stock so redeemed shall be treated as if it had never been outstanding.

Sec. 382(l)(1) not applicable with respect to capital contributions made by Treasury under the programs: For purposes of Sec. 382(l)(1), any capital contribution made by Treasury under the programs will not be considered to have been made as part of a plan a principal purpose of which was to avoid or increase any Sec. 382 limitation.²³

The most significant change from Notice 2008-100 is that treatment extends to “subsequent holders” of the instruments. The treatment of warrants differs for acquisitions under the private and S corporation CPPs. The rules in Notice 2009- 14 will apply unless there is additional guidance. As in the previous notice, this notice contains a grandfather clause stating that any future contrary guidance will not apply to instruments held by Treasury or issued to Treasury under the programs prior to the publication of such guidance or under a written binding agreement entered into prior to the publication of such guidance.

Notice 2009-38

The rules on the application of Sec. 382 to EESA program acquisitions of debt and equity instruments continue to evolve with the issuance on April 13, 2009, of Notice 2009-38,²⁴ which amplifies and supersedes Notice 2009-14. Notice 2009-38 makes several changes to the rules set out in Notice 2009-14 and adds two new rules. The new notice makes the following changes in the rules described above:

Treatment of indebtedness and preferred stock issued to Treasury: The rules remain the same as those in Notice 2009-14, except that in the case of any instrument issued to Treasury pursuant to the TARP Capital Assistance Program, the appropriate classification of that instrument will be determined by applying general principles of federal tax law.

Treatment of warrants issued to Treasury: The general rules for the treatment of warrants to purchase stock issued to Treasury are extended to all EESA programs. However, the special rules applicable to warrants issued in the Private CPP and the S Corp CPP set forth in Notice 2009-14 remain in effect. Notice 2009-38 also adds the following new rules:

Value-for-value exchange: For all federal income tax purposes, any amount received by an issuer in exchange for instruments issued to Treasury under the EESA programs will be treated as received, in its entirety, as consideration for such instruments.

Covered instruments: The rules regarding value-for-value exchanges and the Sec. 382 treatment of stock acquired or redeemed by Treasury and capital contributions made by Treasury apply to covered instruments as though such instruments were issued directly to Treasury under the EESA programs. For purposes of the rules, the term “covered instrument” means any instrument acquired by Treasury in exchange for an instrument that was issued to Treasury under the EESA programs. The term also includes any instrument acquired by Treasury in exchange for a covered instrument. General principles of federal tax law determine the characterization of all covered instruments.

As was the case with Notice 2009-14, taxpayers may rely on the rules in Notice 2009-38 until Treasury issues further guidance, and any future contrary guidance will not apply to instruments acquired by or issued to Treasury before the issuance of the guidance or under a binding contract entered into before the issuance of the guidance.

Special Rule for Certain Ownership Changes

Sec. 382(n) was enacted by ARRA.²⁵ This provision, which is effective for ownership changes after February 17, 2009, provides the same basic protection as the Sec. 382 notices discussed above. Sec. 382(n) provides that the Sec. 382(a) limitation will not apply if the ownership change occurs under a restructuring plan that meets two requirements:

• The restructuring is required under a loan agreement or commitment or a line of credit entered into with Treasury under EESA; and
• The restructuring is intended to result in a rationalization of the costs, capitalization, and capacity with respect to the manufacturing workforce of, and suppliers to, the taxpayer and its subsidiaries.

The meaning of the first exemption requirement is clear: The ownership change must be a restructuring under EESA. However, the IRS may need to provide guidance that clarifies the meaning of the second requirement.

Sec. 382(n)(2) specifies that the exemption will not protect subsequent ownership changes unless these changes meet the same requirements. It will also not apply if, immediately after the ownership change, any person (other than a voluntary employees’ beneficiary association) owns stock of the old loss corporation possessing 50% or more of the total combined voting power of all classes of the voting stock or of the total value of stock of the loss corporation.²⁶ For these purposes, related persons are treated as a single person and the relationship rules in Secs. 707(b) and 267(b) are used to determine if persons are related. In addition, members of a group acting in concert are considered to be related.²⁷

Conclusion

Transactions under the Housing and Economic Recovery Act of 2008 relating to Fannie Mae and Freddie Mac transactions are still covered under Notice 2008-76. Transactions under EESA were subject to the other notices discussed above until February 17, 2009. Transactions after that date are subject to new Sec. 382(n).

Treasury’s bailout plan has generated a great deal of controversy over the past several months. As new challenges have arisen, Treasury has attempted to quickly adapt to market events and provide support to the U.S. financial system as needed. This is a fluid environment, and the tax implications are changing as the bailouts continue to evolve.

EditorNotes

Karyn Friske is an associate professor of accounting and Darlene Pulliam is a professor of accounting at West Texas A&M University in Canyon, TX. For information about this article, contact Prof. Pulliam at dpulliam@mail.wtamu.edu.

Notes

¹ Housing and Economic Recovery Act of 2008, P.L. 110-289.

² Emergency Economic Stabilization Act of 2008, P.L. 110-343.

³ American Recovery and Reinvestment Act of 2009, P.L. 111-5, signed by President Obama on February 17, 2009.

⁴ “An Introduction to Fannie Mae.”

⁵ “About Fannie Mae,”

⁶ “About Freddie Mac,”

⁷ Duhigg, “Loan-Agency Woes Swell from a Trickle to a Torrent,” New York Times (July 11, 2008).

⁸ U.S. Treasury Department, Office of Public Affairs, “Fact Sheet: Treasury Senior Preferred Stock Purchase Agreement” (September 7, 2008).

⁹ U.S. Treasury Department, “Statement by Secretary Tim Geithner on Treasury’s Commitment to Fannie Mae and Freddie Mac” (February 18, 2009).

¹⁰ U.S. Treasury Department, “Remarks by Secretary Henry M. Paulson, Jr. at the Ronald Reagan Presidential Library,” press release HP-1285 (November 20, 2008).

¹¹ U.S. Treasury Department, “Treasury Announces TARP Capital Purchase Program Description,” press release HP-1207 (October 14, 2008).

¹² Tax Reform Act of 1986, P.L. 99-514, §621(a).

¹³ Notice 2008-76, 2008-39 I.R.B. 768.

¹⁴ Notice 2008-78, 2008-41 I.R.B. 851.

¹⁵ Notice 2008-78, §III.B.2.

¹⁶ Notice 2008-83, 2008-42 I.R.B. 905.

¹⁷ See, e.g., Dash and White, “Wells Fargo Swoops In,” New York Times C1 (October 3, 2008).

¹⁸ American Recovery and Reinvestment Act of 2009, §1261(a)(1).

¹⁹ Notice 2008-84, 2008-41 I.R.B. 855.

²⁰ Notice 2008-100, 2008-44 I.R.B. 1081, amplified and superseded by Notice 2009-14.

²¹ Notice 2008-100, §III.

²² Notice 2009-14, 2009-7 I.R.B. 516, amplified and superseded by Notice 2009-38.

²³ Notice 2009-14, §III.

²⁴ Notice 2009-38, 2009-18 I.R.B. 901.

²⁵ American Recovery and Reinvestment Act, §1262(a).

²⁶ Sec . 382(n)(3)(A).

²⁷ Sec. 382(n)(3)(B).