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Selected Issues in Domestic Tax-Exempt Leasing Transactions

By Daniel Lavin
August 01, 2003

Lease investors have been participating in cross-border transactions for a wide variety of municipal facilities for several years. Assets have included water and sewer systems, electric and gas distribution systems, rail rolling stock and infrastructure, and convention centers. Investors have also been participating in transactions involving U.S. state and local government entities for several years. However, the preponderance of the U.S. transactions closed to date have involved rolling stock or transit facilities.

Although the tax law governing both cross-border transactions and U.S. state and local government transactions is the same and the structures used (most commonly sale leaseback followed by a service contract with most rent payment obligations economically defeased, and potential purchase option exercise provided for) are similar, the U.S. market has not yet grown to encompass the breadth of asset types seen in the foreign market. Many considerations interact to make U.S. state and local transactions difficult to do despite their clear economic attractions. While some of these factors are common to all transactions with governments and government-controlled entities, many of them are particular to U.S. state and local government entities. The purpose of this article is to explore some of the issues surrounding U.S. state and local transactions.

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