Roles / Our Areas Of Experience
GilmoreBell has served as bond counsel to transactions of municipal issuers for over three decades. As bond counsel, GilmoreBell structures all types of public finance transactions from concept to completion including general municipal improvements, schools and other public buildings, electric, water and sewer utilities, highways, streets and bridges, fire protection facilities, hospitals, long-term care facilities, airports, parks and recreational facilities, colleges and universities, industrial, manufacturing and commercial projects, pollution control and solid waste and sewage disposal facilities, convention centers, sports facilities and single and multi-family housing projects. At the culmination of each public finance transaction, we deliver an opinion regarding the validity and, if applicable, the tax-exempt status of the financing. Bond counsel services typically include preparing or reviewing all legal documents and proceedings relating to a financing, examining the applicable law necessary to render our opinion, attending related meetings and conferences, coordinating the closing, providing all parties to the transaction a complete transcript of the financing and various other related services, including handling matters before the IRS, if necessary. We recognize that the role of bond counsel has evolved significantly since its inception, and we strive to be leaders in its ongoing evolution as we continue to provide quality, cost-efficient and timely bond counsel services to our clients.
DIRECT LENDING COUNSEL
GilmoreBell’s direct lending attorneys utilize the firm’s broad public finance expertise to benefit our lender clients in a wide variety of public finance transactions. Our attorneys represent national lenders in transactions benefitting borrowers across the country. We understand the unique concerns and perspectives of our lender clients as they strive to meet the goals of borrowers. Our financing experience in this area includes direct placement leases, certificates, bonds, notes, and a variety of master financing agreements for governmental, 501(c)(3), economic development and housing projects.
GilmoreBell attorneys have considerable experience providing disclosure counsel services on virtually all types of public finance transactions, both as an additional component to our bond counsel services and in specific disclosure counsel engagements with issuers and borrowers. Disclosure counsel services typically consist of preparing an official statement or other offering document, participating in due diligence necessary to deliver a standard “negative assurance” letter, if requested, and providing in-depth analysis and advice directly to our clients regarding specific disclosure issues. GilmoreBell attorneys and staff have extensive experience analyzing past continuing disclosure compliance and preparing appropriate disclosure of any compliance deficiencies for inclusion in official statements.
ECONOMIC DEVELOPMENT COUNSEL
In our role as Economic Development special legal counsel for local governments, we provide advice and guidance to local government officials for the consideration and approval of targeted economic incentives for development and revitalization of urban, suburban and rural economies. To satisfy infrastructure needs, the firm’s economic development attorneys represent cities and counties in the formation and administration of special taxing districts, such as community improvement districts and transportation development districts. Our attorneys have been involved with creative tax increment financing (TIF) plans to finance large and small economic development projects and the issuance of tax-exempt and taxable bonds to create new commercial facilities and new jobs. When a development project is proposed by a private developer, we represent the local government in the process of considering and approving the requested public incentive package.
GilmoreBell maintains a department of tax attorneys and tax analysts who provide consultation and support nationwide for each tax-advantaged financing in which the Firm is involved. As Tax Counsel, our attorneys ensure that the specific goals of the financing are met while also satisfying the parameters set by the Internal Revenue Code and related Treasury Regulations. Our tax attorneys regularly meet and correspond with issuers and borrowers with respect to issues that may impact the tax-advantaged status of the financing. As part of this advice, our tax attorneys routinely review complex financial agreements, financial derivative products, partnership agreements, management and service contracts, research agreements, leases and other use agreements, among others.
GilmoreBell attorneys bring the depth and breadth of the firm’s experience in public finance to assist underwriters with satisfying their obligations under federal securities laws. Our attorneys engaged as underwriter’s counsel coordinate and manage the due diligence process, assist in the preparation of the official statement or other offering document, prepare or review the bond purchase agreement, continuing disclosure undertaking, and other relevant documents, and deliver an underwriter’s counsel opinion that includes standard “negative assurance” regarding material misstatements and omissions in the offering document. GilmoreBell attorneys bring a results-oriented focus to the role of underwriter’s counsel and work collegially with other members of the financing team to complete the transaction while effectively representing our underwriter clients.
POST ISSUANCE COMPLIANCE
GilmoreBell’s post-issuance compliance services are designed to help municipal issuers, other borrowers and trustees comply with the federal income tax laws and continuing disclosure requirements that apply after tax-advantaged bonds are issued. GilmoreBell has established a separate post-issuance compliance group (the “Compliance Services Group”) staffed with legal assistants, tax analysts, disclosure analysts and administrators. These paraprofessionals, under the direction of GilmoreBell’s tax and securities attorneys, assist governmental issuers and conduit borrowers in complying with federal securities and income tax requirements after the financing closes. Our ultimate goal is to educate issuers and borrowers regarding the requirements imposed on them in order to ease the burdens associated with compliance for their tax-advantaged financings.
The Compliance Services Group’s tax practice focuses on: (1) arbitrage rebate and investment compliance, (2) use of proceeds and use of financed assets, and (3) recordkeeping and ongoing monitoring. GilmoreBell has performed arbitrage rebate computations since 1987 and regularly advises municipal issuers and borrowers on ways they can best comply with arbitrage investment restrictions, arbitrage rebate payment requirements, tax restrictions on the use of bond proceeds and bond-financed facilities, recordkeeping and retention rules, and other related federal income tax compliance issues. In addition, the Firm regularly assists issuers in preparing final written allocations of bond proceeds, calculation of private business use, structuring arrangements in management and service agreements to avoid private business use, complying with the change in use rules in cases where it becomes necessary to sell or dispose of bond-financed property and generally establishing procedures and policies to substantiate ongoing tax compliance.
Continuing Disclosure Compliance
The Compliance Services Group’s continuing disclosure compliance service helps municipal issuers and borrowers timely file annual and quarterly reports required by continuing disclosure undertakings entered into pursuant to SEC Rule 15c2-12. We determine relevant deadlines and the substantive information required under the undertakings, assist with the compilation and presentation of required information, and file the completed report on the Municipal Securities Rulemaking Board’s EMMA website. We also maintain a rolling review of past compliance history, so that our continuing disclosure clients have quick access to the information needed to accurately describe past compliance in an official statement.
The Securities and Exchange Commission’s Municipalities Continuing Disclosure Cooperative (MCDC) Initiative highlighted the importance of municipal issuers and borrowers complying with continuing disclosure undertakings and disclosing past compliance in official statements. Since MCDC, the number of clients using our continuing disclosure compliance service has roughly tripled.
Our tax attorneys regularly advise and represent GilmoreBell clients before the Internal Revenue Service (the “IRS”) in audits and examinations of tax-advantaged bond issues. Our role includes gathering information and preparing responses to information document requests from IRS agents, participating in site visits with IRS agents, responding to notices of proposed issue, and assisting clients through the appeals process, if necessary. GilmoreBell’s tax attorneys have favorably resolved over 100 audit examinations.
After a tax-advantaged obligation is issued, there are restrictions and limitations placed on the assets financed with proceeds of the obligation. If an asset is later sold or used in contravention of these requirements and limitations, it may be necessary for an issuer or borrower to take remedial action to prevent the sale or improper use of the asset from causing the interest on its outstanding obligation to lose its tax-advantaged status. Our tax attorneys guide clients through the remedial action process by providing advice and analysis in these situations. GilmoreBell tax attorneys have extensive experience in drafting remedial action certificates and related exhibits and establishing irrevocable defeasance escrows to redeem nonqualified bonds, if necessary.
Occasionally through annual compliance checks or other diligence, an issuer or borrower may discover a violation of certain tax covenants that apply to their outstanding tax-advantaged bonds that cannot be resolved under the Internal Revenue Code and related Treasury Regulations. GilmoreBell’s tax attorneys diligently assist clients in resolving these violations through the IRS’s Voluntary Closing Agreement Program (VCAP). Because of the sensitive nature of submitting an issue to VCAP, it is crucial that the facts and the analysis are properly framed before being presented to the IRS for consideration. We consult and advise issuers throughout the VCAP process to ensure that any violations are conclusively resolved by entering into a closing agreement with the IRS. Additionally, our tax attorneys have submitted written requests and obtained letter rulings from the IRS that provide an interpretation and application of certain tax laws based on our client’s specific fact scenario.