Td 8350

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Treasury Decisions
Copyright 2007 LexisNexis Group, All Rights Reserved
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
56 FR 21926
Requirements For Investments To Qualify Under Section 936(d)(4) As Investments in Qualified Caribbean Basin
Countries
T.D. 8350
DATE: May 13, 1991
ACTION: Final regulations.
SUMMARY: This document contains final Income Tax Regulations relating to the requirements that must be met for
an investment to qualify under section 936(d)(4) as an investment in qualified Caribbean Basin Countries. Subject to
such conditions as are prescribed by regulation, funds of possessions corporations that are invested by financial
institutions in active business assets or development projects in a qualified Caribbean Basin country are to be treated as
used in Puerto Rico for purposes of section 936(d)(2). The regulations prescribe the conditions for such an investment
to qualify as for use in Puerto Rico under section 936(d)(4).
DATES: Effective May 13, 1991 except for the removal of § 1.936-10T which is effective June 12, 1991. These
regulations are applicable to investments made by a possessions corporation in a financial institution that are used by a
financial institution for investments in accordance with a specific authorization granted by the Commissioner of
Financial Institutions of Puerto Rico after September 22, 1989. However, the taxpayer may choose to apply §
1.936-10T(c) for periods before June 12, 1991.Display Classification Information Display Classification
Information Display Classification Information Display Classification Information Display Classification
Information Display Classification Information Display Classification Information
ADDRESSES:
FOR FURTHER INFORMATION CONTACT: Christine Halphen (202-377-9493, not a toll-free call) or W. Edward
Williams (202-287-4851, not a toll-free call) of the Office of Associate Chief Counsel (International) within the Office
of Chief Counsel, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224, (Attention:
CC:CORP:T:R (INTL-955-86)).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act

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The collection of information contained in these final regulations has been reviewed and approved by the Office of
Management and Budget, in accordance with the requirements of the Paper Reduction Act (44 U.S.C. 3504(h)) under
control number 1545-1138. The estimated average annual burden per respondent/recordkeeper is 30 hours.
This estimate is an approximation of the average time expected to be necessary for a collection of information. It is
based on such information as is available to the Internal Revenue Service. Individual respondents/recordkeepers may
require greater or less time, depending on their particular circumstances.
Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be
directed to the Internal Revenue Service, Attention: IRS Reports Clearance Officer, T:FP, Washington, DC 20224, and
to the Office of Management and Budget, Paperwork Reduction Project (1545-1138), Washington, DC 20503.
Background
On September 22, 1989, the Federal Register published proposed and temporary Income Tax Regulations (26 CFR
part 1) [T.D. 8268, 1989-2 C.B. 134] under section 936(d)(4) of the Internal Revenue Code of 1986, which section was
enacted by section 1231(c) of the Tax Reform Act of 1986 (100 Stat. 2085). Written comments responding to the notice
of proposed amendment were received. Also, a request for public hearings was received and hearings were held on
March 19, 1990. After consideration of all comments regarding the proposed amendments, many of those amendments
are adopted by this Treasury Decision, some with revisions. The significant comments and suggestions are described
below.
Explanation of Provisions
Section 1.936-10(c)(1) is amended to clarify that a loan by a qualified financial institution may be made either
directly or through a financial intermediary.
Comments were received regarding the ability of a qualified recipient to issue bonds directly to possessions
corporations. In response to this comment, and in view of the statutory requirement that the investment be made by a
financial institution, § 1.936-10(c)(3) is amended to expand the definition of a qualified financial institution to include
certain single-purpose entities. This concept facilitates the direct borrowing of section 936 funds by qualified recipients,
including by way of bond issuance. Also, § 1.936-10(c)(3)(i) is amended to eliminate the private letter ruling process
for other institutions, because the concept of single purpose entities is expected to deal adequately with most situations.
Rulings issued prior to the publication of these final regulations under the prior version of § 1.936-10(c)(3)(i) are
unaffected by this change.
Comments were received regarding the restriction for investments in used business assets. In response to those
comments, the five-year rule in § 1.936-10(c)(4)(ii)(B) is reduced to three years, effective for acquisitions after the date
of publication of these final regulations. Suggestions to delete the rule were not adopted because of the legislative intent
behind section 936(d)(4) to encourage capital formation in the Caribbean region rather than simply providing an
opportunity for churning existing assets. For the same reason, suggestions to allow the use of section 936 funds to
acquire land and existing real property structures or to refinance existing loans were not adopted.
In response to a comment regarding agribusiness projects, § 1.936-10(c)(4)(ii) is amended by adding a subdivision
(E) regarding investments in plants and animals in relation to a farming business. A conforming amendment is made to
§ 1.936-10(c)(7) regarding temporary periods and refinancing of non-section 936 financing in the case of long term
projects.
A number of comments were received suggesting raising or eliminating the 2 percent limit on issuance costs that
may be financed out of amounts borrowed. In response to those comments, § 1.936-10(c)(4)(iii)(A) is amended to raise
the limit to 3.5 percent. This limit is based upon a similar limit allowed under section 147(g) for certain small
tax-exempt issues. The provision is further amended to clarify that the cost base for purposes of computing the limit is

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determined without regard to the costs of credit enhancement or bond insurance premiums.
Comments were received regarding the 10 percent limit imposed on the use of section 936 funds to finance the cost
of inventory and other working capital requirements. Comments were also received to allow the use of section 936
funds to finance export activities. To address these comments the final regulations raise the 10 percent limit to 50
percent where the financing is in connection with an investment in a manufacturing or farming operation.
The earlier published proposed and temporary regulations had reserved on the issue of privatization. The final
regulations also reserve on this issue. In the Notice portion of this Federal Register, the Internal Revenue Service is
issuing proposed regulations relating to the use of section 936 funds to finance an investment that qualifies as a
privatization.
Section 1.936-10(c)(7)(i) relating to the replacement of temporary non-qualified financing is amended to clarify
that the provisions under the paragraph apply only to: (1) The refinancing of costs incurred in relation to an investment
that was a qualified investment when the non-qualified financing was contracted for, or (2) the refinancing of costs
incurred in relation to an investment that was not a qualified investment when the financing was contracted for, but in
that case, the refinancing can only be to the extent of costs incurred after the investment has become a qualified
investment. Also, § 1.936-10(c)(7)(i) is amended to clarify the meaning of non-qualified financing, i.e., financing from
sources other than section 936. Further, the requirement in § 1.936-10(c)(7)(i) that approval of the section 936 financing
of a long-term project be obtained prior to the commencement of the project has been modified. The final regulations
provide that only those eligible costs incurred after the filing of a plan with the Commissioner of Financial Institutions
of Puerto Rico may be refinanced under § 1.936-10(c)(7)(i).
Comments were received to allow the use of more than one financial intermediary outside Puerto Rico. This
suggestion was not adopted because of the concerns that multiple intermediaries outside Puerto Rico might unduly
erode the savings from the use of section 936 funds and complicate the ability of the Commissioner and of the
Commissioner of Financial Institutions of Puerto Rico to monitor the use of such funds for authorized purposes.
However, the definition of a financial intermediary has been modified to include international organizations whose
principal purpose is to foster economic development in developing countries.
A suggestion to allow the use of section 936 funds to fund equity investments was not adopted.
Special Analyses
It has been determined that these rules are not major rules as defined in Executive Order 12291. Therefore, a
Regulatory Impact Analysis is not required. It has also been determined that section 553(b) of the Administrative
Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to these
regulations, and, therefore, a final Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the
Code, the notice of proposed rulemaking was submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small business.
Drafting Information
The principal authors of these regulations are Christine Halphen and W. Edward Williams of the Office of the
Associate Chief Counsel (International) within the Office of Chief Counsel, Internal Revenue Service. Other personnel
from offices of the Internal Revenue Service and the Treasury Department participated in developing these regulations.
List of Subjects
26 CFR 1.931-1 Through 1.936-10T
Guam, Income taxes, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

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26 CFR Part 602
Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1 -- INCOME TAX; TAXABLE YEARS AFTER DECEMBER 31, 1953
Paragraph 1. The authority for part 1 continues to read as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.936-10T is removed.
Par. 3. New § 1.936-10 is added to read as follows:
§ 1.936.10 Qualified investments.
(a) In general. [Reserved]
(b) Qualified investments in Puerto Rico. [Reserved]
(c) Qualified investment in certain Caribbean Basin countries -- (1) General rule. An investment of qualified funds
described in this section shall be treated as a qualified investment of funds for use in Puerto Rico if the funds are used
for a qualified investment in a qualified Caribbean Basin country. A qualified investment in a qualified Caribbean Basin
country is a loan of qualified funds by a qualified financial institution (described in paragraph (c)(3) of this section)
directly to a qualified recipient (described in paragraph (c)(9) of this section) or indirectly through a single financial
intermediary for investment in active busines assets (as defined in paragraph (c)(4) of this section) in a qualified
Caribbean Basin country (described in paragraph (c)(10)(ii) of this section) or for investment in development projects
(as defined in paragraph (c)(5) of this section) in a qualified Caribbean Basin country, provided -(i) The investment is authorized, prior to disbursement of the funds, by the Commissioner of Financial Institutions
of Puerto Rico (or his delegate) pursuant to regulations issued by such Commissioner; and
(ii) The agreement, certification, and due diligency requirements under paragraphs (c) (11), (12), and (13) of this
section are met.
A loan by a qualified financial institution shall not be disqualified merely because the loan transaction is
processed by the central bank of issue of the country into which the loan is made pursuant to, and solely for
purposes of complying with, the exchange control laws or regulations of such country. Further, a loan by a
qualified financial institution shall not be disqualified merely because the loan is acquired by another person,
provided such other person is also a qualified financial institution.
(2) Termination of qualification -- (1) In general. An investment that, at any time after having met the requirements
for a qualified investment in a qualified Caribbean Basin country under the terms of this paragraph (c), fails to meet any
of the conditions enumerated in this paragraph (c) shall no longer be considered a qualified investment in a qualified
Caribbean Basin country from the time of such failure, unless the investment satisfies the requirements for a timely cure
described in paragraph (c)(2)(ii) of this section. Such a failure includes, but is not limited to, the occurrence of any of
the following events:
(A) Active business assets cease to qualify as such;

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(B) Proceeds from the investment are diverted for the financing of assets, projects, or operations that are not active
business assets or development projects or are not the assests or the project of the qualified recipient;
(C) The holder of the qualified recipient's obligation is not a qualified financial institution;
(D) The qualified recipient's qualified business activity creases to qualify as such; or
(E) The qualified Caribbean Basin country ceases to be a country described in paragraph (c)(10)(ii) of this section.
(ii) Timely cure -- (A) In general. A timely cure shall be considered to have been made if the event or events that
cause disqualification of the investment are corrected within a reasonable period of time. For purposes of this section, a
reasonable period of time shall not exceed 60 days after such event or events come to the attention of the qualified
recipient or the qualified financial institution or should have some to their attention by the exercise of reasonable
diligence.
(B) Due diligence requirements. A time cure of a failure to comply with the due diligence requirements of
paragraphs (c) (11), (12), and (13) of this section shall be considered to be made if the failure to comply is due to
reasonable cause and, upon request of the Commissioner of Financial Institutions of Puerto Rico (or his delegate) or of
the Assistant Commissioner (International) (or his authorized representative), the qualified financial institution (and its
trustee or agent), if any), the financial intermediary, or the qualified recipient establishes to the satisfaction of the
Commissioner of Financial Institutions of Puerto Rico (or his delegate) or of the Assistant Commissioner (International)
(or his authorized representative) that it has exercised due diligence in ensuring that the funds were property disbursed
to a qualified recipient and applied by or on behalf of such qualified recipient to uses that qualify the investment as an
investment in qualified business assets or a development project under the provisions of this paragraph (c).
(iii) Assumption of qualified recipient's obligation. An investment shall not cease to qualify merely because the
qualified recipient's obligation to the qualified financial institution (or to a financial intermediary, if any) is assumed by
another person, provided such other person assumes the qualified recipient's agreement and certification requirements
under paragraph (c)(11)(i) of this section and is either -(A) A qualified recipient on the date of assumption, in which case such person shall be treated for purposes of this
section as the original qualified recipient and shall be subject to all the requirements of this section for continued
qualification of the loan as a qualified investment in a qualified Caribbean Basin country; or
(B) An international organization, the principal purpose of which is to foster economic development in developing
countries and which is described in section 1 of the International Organizations Immunities Act (22 U.S.C. 288), if the
assumption of the obligation is pursuant to a bona fide guarantee agreement.
(3) Qualified financial institution -- (i) General rule. For purposes of section 936(d)(4)(A) and this section, a
qualified financial institution includes only -(A) A banking, financing, or similar business defined in § 1.864-4(c)(5)(i) that is an eligible institution described in
paragraph (c)(3)(ii) of this section, but not including branches of such institution outside of Puerto Rico;
(B) A single-purpose entity described in paragraph (c)(3)(iii) of this section;
(C) The Government Development Bank for Puerto Rico;
(D) The Puerto Rico Economic Development Bank; and
(E) Such other entity as may be determined by the Commissioner by Revenue Procedure or other guidance
published in the Internal Revenue Bulletin.

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(ii) Eligible institution. An eligible institution means an institution -(A) That is an entity organized under the laws of the Commonwealth of Puerto Rico or is the Puerto Rican branch
of an entity organized under the laws of another jurisdiction, if such entity is engaged in a banking, financing, or similar
business defined in § 1.864-4(c)(5)(i), and
(B) That is licensed as an eligible institution under Regulation No. 3582 (or any successor regulation) issued by the
Commissioner of Financial Institutions of Puerto Rico (hereinafter "Puerto Rican Regulation No. 3582").
(iii) Single-purpose entity. A single-purpose entity is an entity that meets all of the following conditions:
(A) The entity is organized under the laws of the Commonwealth of Puerto Rico and is a corporation, a partnership
or a trust, which conducts substantially all of its activities in Puerto Rico.
(B) The sole purpose of the entity is to use qualified funds from possessions corporations to make one or more
qualified investments in a qualified Caribbean Basin country and the entity actually uses such funds only for such
purpose.
(C) In the case of an entity that is a trust, one of the trustees is a qualified financial institution described in
paragraph (c)(3)(i) of this section.
(D) The entity is licensed as an eligible institution under Puerto Rican Regulation No. 3582 (or any successor
regulation).
(E) Any temporary investment by the entity for its own account of funds received from a possessions corporation,
and the income from the investment thereof, and any temporary investment by the entity for its own account of principal
and interest paid by a borrower to the entity, and the income from the investment thereof, are limited to investments in
eligible activities, as described in section 6.2.4 of Puerto Rican Regulation No. 3582, as in effect on September 22,
1989.
(4) Investments in active business assets -- (i) In general. For purposes of section 936(d)(4)(A)(i)(I) and this section
and subject to the provisions of paragraph (c)(8) of this section, a loan qualifies as an investment in active business
assets if -(A) The amounts disbursed to a qualified recipient under the loan or bond issue are promptly applied (as defined in
paragraphs (c) (6) and (7) of this section) by (or on behalf of) the qualified recipient solely for capital expenditures for
the construction, rehabilitation (including demolition associated therewith), improvement, or upgrading of qualified
assets described in paragraphs (c)(4)(ii) (A), (B), (E), and (F) of this section, for the acquisition of qualified assets
described in paragraphs (c)(4)(ii) (B), (C), (E), and (F) of this section, for the expenditures described in paragraphs
(c)(4)(ii) (D), (E), and (F) of this section, and, if applicable, for the financing of incidental expenditures described in
paragraph (c)(4)(iii) of this section;
(B) The qualified recipient owns the assets for United States income tax purposes and uses them in a qualified
business activity (as defined in paragraph (c)(4)(iv)); and
(C) The requirements of paragraph (c)(6) of this section (regarding temporary investments and time periods within
which the funds must be invested) and of paragraph (c)(7) of this section (regarding the refinancing of existing funding
and the time periods within which funding for investments must be secured) are satisfied.
(ii) Definition of qualified assets. For purposes of this paragraph (c), qualified assets mean -(A) Real property;

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(B) Tangible personal property (such as furniture, machinery, or equipment) that is not property described in
section 1221(1) and that is either new property or property which at no time during the period specified in paragraph
(c)(4)(v) of this section was used in a business activity in the qualified Caribbean Basin country in which the property is
to be used;
(C) Rights to intangible property that is a patent, invention, formula, process, design, pattern, know-how, or similar
item, or rights under a franchise agreement, provided that such rights -(1) Were not at any time during the period specified in paragraph (c)(4)(v) of this section used in a business activity
in the qualified Caribbean Basin country in which the rights are to be used,
(2) Are not rights the use of which gives rise, or would give rise if used, to United States source income, and
(3) Are not rights acquired by the qualified recipient from a person related (within the meaning of section 267(b),
using "10 percent" instead of "50 percent" in the places where it appears) to the qualified recipient;
(D) Exploration and development expenditures incurred by a qualified recipient for the purpose of ascertaining the
existence, location, extent or quality of any deposit of ore, oil, gas, or other mineral in a qualified Caribbean Basin
country, as well as for purposes of developing such deposit (within the meaning of section 616 of the Code and the
regulations thereunder);
(E) Living plants and animals (other than crops, plants, and animals that are acquired primarily to hold as inventory
by the qualified recipient for resale in the ordinary course of trade or business) acquired in connection with a farming
business (as defined in § 1.263-1T(c)(4)(i)), expenditures of a preparatory nature to prepare the land or area for farming
(such as planting trees, drilling wells, clearing brush, leveling land, laying pipes, building roads, constructing tanks and
reservoirs), expenditures for soil and water conservation of a type described in section 175(c)(1), and expenditures of a
development nature incurred in connection with, and during, the preproductive period of property produced in a farming
business (as defined in § 1.263-1T(c)(4)(ii));
(F) Other assets or expenditures that are not described in paragraphs (c)(4)(ii) (A) through (E) of this section and
that the Commissioner may, by Revenue Procedure or other guidance published in the Internal Revenue Bulletin or by
ruling issued to a qualified financial institution or qualified recipient upon its request, determine to be qualified assets.
(iii) Incidental expenditures. An amount in addition to the loan proceeds borrowed to make an investment in active
business assets shall be considered an investment in active business assets if such amount is applied to finance
expenditures that are incidental to making the investment in active business assets, provided such amount is disbursed at
or about the same time the proceeds for making the investment in active business assets are disbursed. For purposes of
this section, expenditures incidental to an investment in active business assets include only the following items:
(A) A reasonable amount of costs (other than the cost of credit enhancement or bond insurance premiums)
associated with arranging the financing of an investment in active business assets, not to exceed 3.5 percent of the
proceeds of the loan or bond issue.
(B) A reasonable amount of installation costs and other reasonable costs associated with placing an active business
asset in service in the qualified business activity.
(C) An amount not in excess of 10 percent of the total amount of investment in qualified assets to finance the
acquisition of inventory, and other working capital requirements, but if an investment is in connection with a
manufacturing or farming business, the percentage limitation shall be 50 percent rather than 10 percent provided the
excess over the 10 percent limitation is used to finance inventory property. For purposes of this paragraph (c), whether a
business is a manufacturing business shall be determined under principles similar to those described in section
954(d)(1)(A) and the regulations thereunder; whether a business is a farming business shall be determined under §

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1.263-1T(c)(4)(i).
(D) An amount not in excess of 5 percent of the sum of the investment in active business assets and the costs
described in paragraphs (c)(4)(iii) (A), (B), and (C) of this section for the refinancing of an existing debt of the qualified
recipient if such refinancing is incidental to an investment in active business assets. For this purpose, the replacement of
an existing loan arrangement shall not be considered the refinancing of an existing indebtedness to the extent that the
funds under such loan arrangement have not yet been disbursed to the qualified recipient.
(iv) Qualified business activity. A qualified business activity is a lawful industrial or commercial activity that is
conducted as an active trade or business (under principles similar to those described in § 1.367(a)-2T(b) (2) and (3)) in a
qualified Caribbean Basin country. A trade or business for purposes of this paragraph (c)(4)(iv) is any business activity
meeting the principles of section 367 of the Code and described in Divisions A through I (excluding group 43 in
Division E (relating to the United States Postal Service) and groups 84 (relating to museums, art galleries, and botanical
and zoological gardens), 86 (relating to membership organizations), and 88 (relating to private households in Division I)
of the 1987 Standard Industrial Classification Manual issued by the Executive Office of the President, Office of
Management and Budget, or in the comparable provisions of any successor Standard Industrial Classification Manual
that is adopted by the Commissioner of Internal Revenue in a notice, regulation, or other document published in the
Internal Revenue Cumulative Bulletin.
(v) Period of use. The period referred to in paragraphs (c)(4)(ii) (B) and (C) of this section shall be a five year
period preceding the date of acquisition with the loan proceeds, if the date of acquisition is on or before May 13, 1991.
If the date of acquisition is after May 13, 1991, then the period specified in this paragraph (c)(4)(v) shall be three years
preceding the date of acquisition with the loan proceeds.
(5) Investments in development projects -- (i) In general. Subject to the provisions of paragraph (c)(8) of this
section, this paragraph (c)(5)(i) describes the requirements in order for a loan by a qualified financial institution to
qualify as an investment in a development project for purposes of section 936(d)(4)(A)(i)(II) and for this section.
(A) The amounts disbursed under the loan or bond issue must be promptly applied (as defined in paragraphs (c) (6)
and (7) of this section) by (or on behalf of) the qualified recipient solely for one or more investments described in
paragraph (c)(4)(i)(A) of this section and in any land, buildings, or other property functionally related and subordinate
to a facility described in paragraph (c)(5)(ii) of this section (determined under principles similar to those described in §
1.103-8(a)(3)), for use (under principles similar to those described in § 1.367(a)-2T(b)(5)) in connection with one or
more activities described in paragraph (c)(5)(i)(B) of this section.
(B) The activities referred to in paragraph (c)(5)(i)(A) of this section are -(1) A development project described in paragraph (c)(5)(ii) of this section in a qualified Caribbean Basin country;
or
(2) The performance in a qualified Caribbean Basin country of a non-commercial governmental function described
in paragraph (c)(5)(iv) of this section;
(C) The qualified recipient must own the assets for United States income tax purposes;
(D) The requirements of paragraph (c)(6) of this section (regarding temporary investments and time periods within
which the funds must be invested) and of paragraph (c)(7) of this section (regarding the refinancing of existing funding
and time periods within which funding for investments must be secured) must be satisfied.
(ii) Development project. For purposes of this paragraph (c), a development project is one or more facilities in a
qualified Caribbean Basin country that support economic development in that country and that satisfy the public use
requirement of paragraph (c)(5)(iii) of this section. Examples of facilities that may meet the public use requirement

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include, but are not limited to -(A) Transportation systems and equipment, including sea, surface, and air, such as roads, railways, air terminals,
runways, harbor facilities, and ships and aircraft;
(B) Communications facilities;
(C) Training and education facilities related to qualified business activities;
(D) Industrial parks, including necessary support facilities such as roads; transmission lines for water, gas,
electricity, and sewage; docks; plant sites preparations; power generation; sewage disposal; and water treatment;
(E) Sports facilities;
(F) Convention or trade show facilities;
(G) Sewage, solid waste, water, and electric facilities;
(H) Housing projects pursuant to a government program designed to provide affordable housing to low or moderate
income families, based upon local standards; and
(I) Hydroelectric generating facilities.
(iii) Public use requirement. To satisfy the public use requirement in paragraph (c)(5)(ii) of this section, a facility
must serve or be available on a regular basis for general public use, as contrasted with similar types of facilities which
are constructed for the exclusive use of a limited number of persons as determined under principles similar to those
described in § 1.103-8(a)(2).
(iv) Non-commercial governmental functions. For purposes of paragraph (c)(5)(i)(B) of this section, the term
"non-commercial governmental functions" refers to activities that, under U.S. standards, are not customarily attributable
to or carried on by private enterprises for profit and are performed for the general public with respect to the common
welfare or which relate to the administration of some phase of government. For example, the operation of libraries, toll
bridges, or local transportation services, and activities substantially equivalent to those carried out by the Federal
Aviation Authority, Interstate Commerce Commission, or United States Postal Service, are considered non-commercial
governmental functions. For purposes of this section, non-commercial government functions shall not include military
activities.
(v) [Reserved]
(6) Prompt application of borrowed proceeds. This paragraph (c)(6) provides rules for determining whether
amounts disbursed to a qualified recipient by a qualified financial institution (or a financial intermediary) shall be
considered to have been promptly applied for the purpose of paragraphs (c)(4)(i)(A) and (c)(5)(i)(A) of this section.
(i) In general. Except as otherwise provided in paragraphs (c)(6)(ii) and (c)(7)(iii)(B) of this section, amounts
disbursed to a qualified recipient by a qualified financial institution (or a financial intermediary) shall be considered to
have been promptly applied for the purpose of paragraphs (c)(4)(i)(A) and (c)(5)(i)(A) of this section if the amounts are
fully expended for any of the purposes described in paragraphs (c)(4)(i)(A) or (c)(5)(i)(A) of this section no later than
six months from the date of such disbursement and any temporary investment of such funds by the qualified recipient
during such period complies with the rules of paragraph (c)(6)(iii)(A) of this section. Where the amounts disbursed are
bond proceeds described in paragraph (c)(6)(iv)(A) of this section, the six-month period shall begin on the date of
issuance of the bonds. In the event the qualified financial institution (or financial intermediary) invests any part of the
bond proceeds before disbursement of those proceeds to the qualified recipient, all earnings from any such investment
shall be paid to the qualified recipient or applied for its benefit.

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(ii) Special rules for long term projects financed out of bond proceeds. In the case of a long term project described
in paragraph (c)(6)(iv)(B) of this section that is financed out of bond proceeds, the six-month period described in
paragraph (c)(6)(i) of this section shall be extended with respect to the amount of bond proceeds used to fund the project
for such reasonable period of time as shall be necessary until completion of the project or until beginning of production
(in the case of a farming business), but, in any event, not to exceed three years from the date of issuance of the bonds,
and only if -(A) The project that is financed out of bond proceeds was identified as of the date of issue;
(B) A construction and expenditure plan certified by an independent expert (such as an engineer, an architect, or a
farming expert) is filed with, and approved by, the Commissioner of Financial Institutions of Puerto Rico (or his
delegate) prior to the date of issue, which makes a reasonable estimate, as of the date of filing of the plan, of the
amounts and uses of the bond proceeds and the time of completion or production, and includes a schedule of progress
payments until such time;
(C) The terms of the construction and expenditure plan are disclosed in the public offering memorandum, private
placement memorandum, or similar document prepared for information or disclosure purposes in relation to the
issuance of bonds; and
(D) Any temporary investment of the bond proceeds complies with the rules of paragraph (c)(6)(iii)(A) and (B) of
this section.
(iii) Temporary investments -- (A) During six-month period. During the six-month period described in paragraph
(c)(6)(i) of this section, during the first six months of the period described in paragraph (c)(6)(ii) of this section, and
during the 30-day period described in paragraph (c)(7)(iii)(A) of this section, loan proceeds disbursed to a qualified
recipient, bond proceeds, and income from the investment thereof, may be held in unrestricted yield investments,
provided such yield reflects normal market yield for such type of investments and provided the income from such
investments, if any, is or would be sourced either in Puerto Rico or in a country in which the investment in active
business assets or development project is to be made.
(B) During other periods. During any other period, any temporary investment of bond proceeds, and of income
from such investments, shall be limited to investments in eligible activities. For purposes of this paragraph
(c)(6)(iii)(B), the term "eligible activities" shall mean those investments described in section 6.2.4 of Puerto Rican
Regulation No. 3582, as in effect on September 22, 1989.
(iv) Definitions -- (A) Bond proceeds. For purposes of this paragraph (c), bond proceeds shall mean the proceeds
from the issuance of obligations by way of a public offering or a private placement by a qualified financial institution
for investment in active business assets or a development project that has been identified at the time of issue and is
described in a public offering memorandum, private placement memorandum, or similar document prepared for
information or disclosure purposes in relation to the issuance of the bonds.
(B) Long term project. For purposes of this section, the term long term project means -(1) A project, whether or not under a contract, for the construction, rehabilitation, improvement, upgrading, or
production of qualified assets, or for expenditures, described in paragraph (c)(4)(ii) of this section (other than paragraph
(c)(4)(ii)(C) of this section), which is reasonably expected to require more than 12 months to complete; or
(2) The production of property in a farming business referred to in paragraph (c)(4)(ii)(E) of this section, which is
reasonably expected to require a preproductive period in excess of 12 months.
(7) Financing of previously incurred costs. Loan or bond proceeds which are disbursed after a qualified recipient
has paid or incurred part or all of the costs of acquiring active business assets or investing in a development project shall

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be considered to have been applied for such purposes only as provided in this paragraph (c)(7).
(i) Replacement of temporary non-section 936 financing of a qualified investment. This paragraph (c)(7)(i)
prescribes the maximum time limits within which temporary non-section 936 financing of qualified investments may be
replaced with section 936 funds without being considered a prohibited refinancing transaction. This paragraph (c)(7)(i)
applies to the refinancing of costs incurred with respect to investments that, at the time the costs were first incurred,
were either qualified investments in a qualified Caribbean Basin country or were investments by a qualified recipient in
active business assets or a development project in a qualified Caribbean Basin country. This paragraph (c)(7)(i) applies
also to the refinancing of costs incurred with respect to any other investment. However, in the latter case, the amount of
costs that may be refinanced with section 936 funds is limited to the amount of costs that are incurred with respect to the
investment after the investment becomes a qualified investment in a qualified Caribbean Basin country. For purposes of
this paragraph (c)(7)(i), the time when costs are incurred shall be determined under principles similar to those applicable
under section 461(h) dealing with the economic performance test for the accrual of deductible liabilities. This paragraph
(c)(7)(i) applies only to the situations described in this paragraph (c)(7)(i).
(A) In the case of an investment in active business assets or a development project, a loan shall be a qualified
investment for purposes of this paragraph (c) if the loan proceeds are disbursed, or the obligations are issued, no later
than six months after the date on which the qualified recipient takes possession of the asset or the facility or, if earlier,
places the asset or the facility in service. However, in the case of a small project described in paragraph (c)(8)(v) of this
section, the six-month period shall be one year.
(B) In the case of an investment in active business assets or a development project that is part of a long term project
described in paragraph (c)(6)(iv)(B) of this section, a loan shall also be a qualified investment for purposes of this
paragraph (c) if the loan proceeds are disbursed, or the obligations are issued, no later than six months after completion
of the project or, in the case of a farming business, after the beginning of production, and in any event, no later than
three years after the date on which the first payment is made toward the eligible costs of the project. The amount of the
qualified investment may not exceed the sum of -(1) The eligible costs relating to investments described in paragraph (c)(4)(i)(A) in the case of an investment in
active business assets, or the eligible costs relating to investments described in paragraph (c)(5)(i) of this section in the
case of a development project, but only to the extent of the costs that are incurred after the date described in paragraph
(c)(7)(i)(D) of this section, and
(2) the portion of unpaid interest that would be required to be capitalized under U.S. tax rules and that accrued on
prior temporary non-section 936 financing from the date described in paragraph (c)(7)(i)(D) of this section through the
date the section 936 loan proceeds are disbursed or the section 936 obligations are issued.
(C) In order to qualify for the special rules of this paragraph (c)(7)(i), a plan must be filed with the Commissioner
of Financial Institutions of Puerto Rico (or his delegate) stating the qualified recipient's intention to refinance the costs
of the long term project with section funds.
(D) The date referred to in paragraph (c)(7)(i)(B) (1) and (2) of this section is a date that is the later of -(1) the date the plan described in paragraph (c)(7)(i)(C) is filed, or
(2) the date the investment becomes a qualified investment by a qualified recipient in active business assets or a
development project in a qualified Caribbean Basin country.
(ii) Refinancing of section 936 financing. A section 936 loan or bond issue used to finance a qualified investment
described in paragraph (c)(1) of this section may be refinanced with section 936 funds through a new loan or bond issue
to the extent of the remaining principal balance on such existing qualified financing, increased by the amount of unpaid
interest accrued through the date the new loan proceeds are disbursed or the new obligations are issued and that would

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be required to be capitalized under U.S. tax rules.
(iii) Prompt application of borrowed proceeds -- (A) In general. In the case of a loan or bond issue described in
paragraphs (c)(7) (i) or (ii) of this section, the rules of paragraph (c)(6) of this section shall apply but the six-month
period described in paragraph (c)(6)(i) of this section shall be limited to 30 days from the date of disbursement of loan
proceeds to the qualified recipient or from the date of issuance in the case of a bond issue.
(B) Special rules for long term projects financed out of bond proceeds. In the case of a long term project described
in paragraph (c)(6)(iv)(B) of this section that is financed out of bond proceeds, the 30-day period described in paragraph
(c)(7)(iii)(A) of this section shall be extended with respect to the amount of bond proceeds used for the permanent
financing of the long term project for such reasonable period of time as shall be necessary until completion of the
project or beginning of production (in the case of a farming business), but, in any event, not to exceed three years from
the date of issuance of the bonds. For purposes of this paragraph (c)(7)(iii)(B), the period of time shall be considered
reasonable only if -(1) A construction and expenditure plan certified by an independent expert (such as an engineer, an architect, or a
farming expert) is filed with, and approved by, the Commissioner of Financial Institutions of Puerto Rico (or his
delegate) prior to the date of issue, which makes a reasonable estimate, as of the date of issue, of the amounts and uses
of the bond proceeds and the time of completion or production, and includes a schedule of progress payments until such
time; and
(2) The terms of the construction and expenditure plan are disclosed in the public offering memorandum, private
placement memorandum, or similar document prepared for information or disclosure purposes in relation to the bond
issue.
(8) Miscellaneous operating rules -- (i) Sale and leaseback. An asset that is acquired and leased back to the person
from whom acquired does not constitute an investment in an active business asset or an investment in a development
project.
(ii) Use of asset in qualified business activity. For purposes of paragraph (c)(4)(i)(B), an asset shall be considered
used or held for use in a qualified business activity if it is used or held for use in such activity under principles similar to
those described in § 1.367(a)-2T(b)(5), or a successor provision.
(iii) Definition of capital expenditures. For purposes of this paragraph (c), capital expenditures mean those
expenditures described in section 263(a) of the Code (without regard to paragraphs (A) through (G) of section
263(a)(1)), and those costs required to be capitalized under section 263A with respect to property described in section
263A(b)(1), relating to self-constructed assets.
(iv) Loans through certain financial intermediaries. A loan by a qualified financial institution shall not be
disqualified from being an investment in active business assets or in a development project merely because the proceeds
are first lent to a financial intermediary (as defined in paragraph (c)(8)(iv)(H) of this section) which, in turn, on-lends
the proceeds directly to a qualified recipient, provided the requirements of this paragraph (c)(8)(iv) are satisfied.
(A) The loan to the qualified recipient must satisfy the requirements of paragraph (c)(4)(i) of this section in the case
of an investment in active business assets, or of paragraph (c)(5)(i) of this section in the case of an investment in a
development project.
(B) The qualified recipient and the active business assets or development project in which the proceeds are to be
invested must be identified prior to disbursement of any part of the proceeds by the qualified financial institution to the
financial intermediary.
(C) The effective interest rate charged by the qualified financial institution to the financial intermediary must not

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T.D. 8350

exceed the average interest rate paid by the qualified financial institution with respect to its eligible funds, increased by
such number of basis points as is required to provide reasonable compensation to the qualified financial institution for
services performed and risks assumed with respect to the loan to the financial intermediary that are not ordinarily
required to be performed or assumed with respect to a deposit, loan, repurchase agreement or other transfer of eligible
funds with another qualified financial institution. The average interest rate shall be the average rate, determined on a
daily basis, paid by the qualified financial institution on its eligible funds over the most recent quarter preceding the
date on which the rate on the loan to the financial intermediary is committed.
(D) The effective interest rate charged by the financial intermediary to the qualified recipient must not exceed the
effective interest rate charged to the financial intermediary by the qualified financial institution, increased by such
number of basis points as is required to provide reasonable compensation to the financial intermediary for services
performed and risks assumed with respect to the loan to the qualified recipient.
(E) The financial intermediary must borrow from the qualified financial institution under substantially the same
terms as it lends to the qualified recipient. In particular, both loans must have disbursement terms, repayment schedules
and maturity dates for interest and principal amounts such that the financial intermediary does not retain for more than
48 hours any of the funds disbursed by the qualified financial institution nor any of the funds paid by the qualified
recipient in repayment of principal or interest on the loan.
(F) The financial institution and the financial intermediary must agree to comply with the due diligence
requirements described in paragraphs (c) (11), (12), and (13) of this section;
(G) The time periods and temporary investments rules in paragraphs (c) (6) and (7) of this section must be
complied with; and
(H) For purposes of this paragraph (c), the financial intermediary must be -(1) An active trade or business which a person maintains in a qualified Caribbean Basin country and which consists
of a banking, financing or similar business as defined in § 1.864-4(c)(5)(i) (other than a central bank of issue); or
(2) A public international organization, the principal purpose of which is to foster economic development in
developing countries and which is described in section 1 of the International Organizations Immunities Act (22 U.S.C. §
288).
For purposes of paragraphs (c)(8)(iv) (C) and (D) of this section, the determination of whether compensation
is reasonable shall be made in relation to normal commercial practices for comparable transactions carrying a
similar degree of commercial, currency and political risk. Reasonable credit enhancement fees and other
reasonable fees and amounts charged to the financial intermediary or the qualified recipient with respect to the
loan transaction in addition to interest shall be added to the interest cost in determining the effective interest
rate.
(v) Small project. For purposes of this paragraph (c), a small project shall be a project (including the acquisition of
an asset) for which the total amount of section 936 funds used for its financing does not exceed $1,000,000 in the
aggregate, or such other amount as the Commissioner may publish, from time to time, in the Internal Revenue Bulletin.
(9) Qualified recipient. For purposes of this section, a qualified recipient is any person described in paragraphs
(c)(9) (i) or (ii) of this section. The term "person" means a person described in section 7701(a)(1) or a government
(within the meaning of § 1.892-2T(a)(1)) of a qualified Caribbean Basin country.
(i) In the case of an investment described in paragraph (c)(4) of this section (relating to investments in active
business assets), a qualified recipient is a person that carries on a qualified business activity in a qualified Caribbean
Basin country, and complies with the agreement and certification requirements described in paragraph (c)(11)(i) of this

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section at all times during the period in which the investment remains outstanding.
(ii) In the case of an investment described in pargraph (c)(5) of this section (relating to investments in development
projects), a qualified recipient is the borrower (including a person empowered by the borrower to authorize expenditures
for the investment in the development project) that has authority to comply, and complies, with the agreement and
certification requirements described in paragraph (c)(11)(i) of this section at all times during the period in which the
investment remains outstanding.
(10) Investments in a qualified Caribbean Basin country -- (i) Rules for determining the place of an investment. The
rules of this paragraph (c)(10)(i) shall apply to determine the extent to which an investment in an active business asset
or a development project will be considered made in qualified Caribbean Basin Country.
(A) An investment in real property is considered made in the qualified Caribbean Basin country in which the real
property is located.
(B) Except as otherwise provided in this paragraph (c)(10)(i)(B), an investment in tangible personal property is
considered made in a qualified Caribbean Basin Country so long as the tangible personal property is predominantly
used in that country. Whether property is used predominantly in a qualified Caribbean Basin country shall be
determined under principles similar to those described in § 1.48-1(g)(1), (g)(2)(ii), (g)(2)(iv), (g)(2)(vi), (g)(2)(viii), and
(g)(2)(x) (relating to investment tax credits for property used outside the United States) as in effect on December 31,
1985. A vessel, container, or aircraft shall be considered for use predominantly in a qualified Caribbean Basin country
in any year if it is used for transport to and from such country with some degree of frequency during that year and at
least 30 percent of the income from the use of such vessel, container or aircraft for that year is sourced in such country
under principles similar to those described in section 863(c) (1) and (2) (relating to source rules for certain
transportation income). Cables and pipelines which are premanently installed as part of a communication or
transportation system between a qualified Caribbean Basin country and another country or among several countries
which include a qualified Caribbean Basin country shall be considered used in a qualified Caribbean Basin country to
the extent of 50 percent of the portion of the facility that directly links the qualified country to another country or to a
hub, unless it is established by notice or other guidance published in the Internal Revenue Bulletin or by ruling issued to
a qualified institution or qualified recipient upon request that it is appropriate to attribute a greater portion of the cost of
the facility to the qualified Caribbean Basin country.
(C) An investment in rights to intangible property is considered made in a qualified Caribbean Basin country to the
extent such rights are used in that country. Where rights to intangible property are used shall be determined under
principles similar to those described in § 1.954-2T(b)(3)(vii) or a successor provision.
(ii) Qualified Caribbean Basin Country. For purposes of this section, the term "qualified Caribbean Basin country"
means any beneficiary country (within the meaning of section 212(a)(1)(A) of the Caribbean Basin Economic Recovery
Act, Public Law 98-67 (Aug. 5, 1983), 97 Stat. 384, 19 U.S.C. 2702(a)(1)(A)), which meets the requirements of section
274(h)(6)(A) (i) and (ii) and the U.S. Virgin Islands, and includes the territorial waters and continental shelf thereof.
(11) Agreements and certifications by qualified recipients and financial intermediaries -- (i) In general. In order for
an investment to be considered a qualified investment under section 936(d)(4) and paragraph (c)(1) of this section, a
qualified recipient must certify to the qualified financial institution (or to the financial intermediary, if the loan is made
through a financial intermediary) on the date of closing of the loan agreement and on each anniversary date thereof, that
it is a qualified recipient described in paragraph (c)(9) of this section. In addition, the qualified recipient must agree in
the loan agreement with the qualified financial institution (or with the financial intermediary, if the loan is made
through a financial intermediary) -(A) To use the funds at all times during the period the loan is outstanding solely for the purposes and in the manner
described in paragraph (c)(4) of this section (regarding investment in active business assets) or in paragraph (c)(5) of

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T.D. 8350

this section (regarding investment in development projects);
(B) To comply with the requirements of paragraph (c)(6) of this section (regarding temporary investments and time
periods within which the funds must be invested) and paragraph (c)(7) of this section (regarding the refinancing of
existing funding and the time periods within which funding for investments must be secured);
(C) To notify the Assistant Commissioner (International), the qualified financial institution (or the financial
intermediary, if the loan is made through a financial intermediary), and the Commissioner of Financial Institutions of
Puerto Rico (or his delegate) pursuant to paragraph (c)(14) of this section if it no longer is a qualified recipient or if, for
any other reason, the investment has ceased to qualify as a qualified investment described in paragraph (c)(1) of this
section, promptly upon the occurrence of such disqualifying event; and
(D) To permit examination by the office of the Assistant Commissioner (International) (or by the office of any
District Director authorized by the Assistant Commissioner (International)) and the Commissioner of Financial
Institutions of Puerto Rico (or his delegate) of all necessary books and records that are sufficient to verify that the funds
were used for investments in active business assets or development projects in conformity with the terms of the loan
agreement.
(ii) Certification by a financial intermediary. In the case of a loan by a qualified financial institution to a financial
intermediary, the financial intermediary must certify to the qualified financial institution (using the procedures
described in paragraph (c)(11)(i) of this section) that it is a financial intermediary described in paragraph (c)(8)(iv)(H)
of this section, and must furnish to the qualified financial institution a copy of the qualified recipient's certification
described in paragraph (c)(11)(i) of this section and of its loan agreement with the qualified recipient. In addition, the
financial intermediary must agree in the loan agreement with the qualified financial institution:
(A) To comply with the requirements of paragraph (c)(8)(iv) of this section; and
(B) To permit examination by the office of the Assistant Commissioner (International) (or by the office of any
District Director authorized by the Assistant Commissioner (International)) and the Commissioner of Financial
Institutions of Puerto Rico (or his delegate) of all its necessary books and records that are sufficient to verify that the
funds were used in conformity with the terms of the loan agreements.
(12) Certification requirements. In order for an investment to be considered a qualified investment under section
936(d)(4), section 936(d)(4)(C)(i) requires that both the person in whose trade or business such investment is made and
the financial institution certify to the Secretary of the Treasury and the Commissioner of Financial Institutions of Puerto
Rico that the proceeds of the loan will be promptly used to acquire active business assets or to make other authorized
expenditures. This certification requirement is satisfied as to the qualified financial institution, the financial
intermediary (if any), and the qualified recipient if the qualified financial institution submits a certificate to both the
Assistant Commissioner (International) and to the Commissioner of Financial Institutions of Puerto Rico (or his
delegate) pursuant to paragraph (c)(14) of this section upon authorization of the investment by the Commissioner of
Financial Institutions and, in any event, prior to the first disbursement of the loan proceeds to the qualified recipient or
to the financial intermediary (if any), in which the qualified financial institution -(i) Represents that, as of the date of the certification, the qualified recipient and the financial intermediary (if any)
have complied with the requirements described in paragraph (c)(11) of this section;
(ii) Describes the important terms of the loan to the financial intermediary (if any) and to the qualified recipient,
including the amount of the loan, the nature of the investment, the basis for its qualification as an investment in active
business assets or a development project under this section, the identity of the financial intermediary (if any) and of the
qualified recipient, the qualified Caribbean Basin country involved, and the nature of the collateral or other security
used, including any guarantee;

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(iii) Agrees to permit examination by the Assistant Commissioner (International) (or by the office of any District
Director authorized by the Assistant Commissioner (International)) and the Commissioner of Financial Institutions of
Puerto Rico (or his delegate) of all its necessary books and records that are sufficient to verify that the funds were used
for investments in active business assets or development projects in conformity with the terms of the loan agreement or
agreements with the financial intermediary (if any) and with the qualified recipient; and
(iv) In the case of a single-purpose entity that is a qualified financial institution, discloses the name and address of
the entity's trustee or agent, if any, that assists the qualified financial institution in the performance of its due diligence
requirement under paragraph (c) of this section, and represents that the trustee or agent has agreed with the qualified
financial institution to permit examination by the Assistant Commissioner (International) (or by the office of any
District Director authorized by the Assistant Commissioner (International)) and the Commissioner of Financial
Institutions of Puerto Rico (or his delegate) of all necessary books and records of such trustee or agent that are sufficient
to verify that the funds were used for investments in active business assets or development projects in conformity with
the terms of the loan agreement or agreements with the financial intermediary (if any) and with the qualified recipient.
(13) Continuing due diligence requirements. In order to maintain the qualification for an investment under
paragraph (c)(1) of this section, the continuing due diligence requirements described in this paragraph (c)(13) must be
satisfied.
(i) Requirements of qualified recipient. A qualified recipient must -(A) Submit annually to the qualified financial institution or to the financial intermediary from which its qualified
funds were obtained a copy of its most recent annual financial statement accompanied by an opinion of an independent
accountant familiar with the financials of the qualified recipient disclosing the amount of the loan, the current
outstanding balance of the loan, describing the assets financed with such loan and the qualified business activity in
which such assets are used or the development project for which the loan is used, and stating that there are no reasons to
doubt that the loan proceeds have been properly used and continue to be properly used, and
(B) Act in a manner consistent with its representations and agreements described in paragraph (c)(11) of this
section.
(ii) Requirements of qualified financial institutions. Except as otherwise provided in paragraph (c)(13)(iii) of this
section, a qualified financial institution described in paragraph (c)(3) of this section must maintain in its records and
have available for inspection the documentation described in paragraph (c)(13)(ii) (A) or (B) of this section. In addition,
the qualified financial institution is required to notify the Assistant Commissioner (International) and the Commissioner
of Financial Institutions of Puerto Rico (or his delegate) pursuant to paragraph (c)(14) of this section upon becoming
aware that a loan has ceased to be an investment in active business assets or a development project under this section.
For purposes of this paragraph (c)(13)(ii), multiple loans for investment in a single qualified business activity or
development project will be aggregated in determining what due diligence requirements apply.
(A) In the case of a small project described in paragraph (c)(8)(v) of this section, the following documents must be
maintained and available for inspection:
(1) The loan application or other similar document;
(2) The financial statements of the qualified recipient filed as part of the loan application;
(3) The statement required by section 6.4.3(a)(iii) of Puerto Rican Regulation No. 3582 or any successor thereof,
signed by the qualified recipient (or its duly authorized representative), acknowledging the receipt of the loan proceeds,
describing the assets financed with such loan and the business activity in which such assets are to be used or the
development project for which the funds will be utilized, the collateral to be provided for the transaction including any
guarantee, and the basis for its qualification as a qualified recipient;

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(4) The loan documents; and
(5) In the case of a qualified financial institution that is a single-purpose entity, a copy of the agreement with the
entity's trustee or agent, if any, described in paragraph (c)(12)(iv) of this section.
(B) In the case of a disbursement concerning a project that is not a small project described in paragraph (c)(8)(v) of
this section, the following documents must be maintained and available for inspection, in addition to the documents
required by paragraph (c)(13)(ii)(A) of this section:
(1) A memorandum of credit prepared by an officer of the qualified financial institution (or, in the case of a single
purpose entity, an agent of the entity or a trustee for the entity, if any) and signed by the officer of the qualified financial
institution, containing the details of the investigation and review that the qualified financial institution, or its trustee or
agent, if any, conducted in order to evaluate whether the investment is qualified under paragraph (c)(1) of this section
and the opinion of the officer of the qualified financial institution, or the opinion of an officer of the agent of, or of the
trustee for, the qualified financial institution, if any, that there is no reasonable ground for belief that the qualified funds
will be diverted to a use that is not permitted under the provisions of this section; in making this investigation and
review, factors that must be utilized are ones similar to those listed in Puerto Rico Regulation No. 3582, section 6.4.2;
(2) The annual financial statement of the qualified recipient; and
(3) The written report of an officer of the qualified financial institution, or of an officer of an agent of, or of the
trustee for, the qualified financial institution, if any, documenting discussions, both before and after the disbursement of
the loan proceeds, with each recipient's accounting, financial and executive personnel with respect to the proposed and
actual use of the loan proceeds and his analysis of the annual financial statements of the qualified recipient including an
analysis of the statement of sources and uses of funds. After the loan disbursement, such discussions and review shall
occur annually during the term of the loan. Such report shall include the conclusion that in such officer's opinion there is
no reasonable ground for belief that the qualified recipient is improperly utilizing the funds.
(iii) Requirements in the case of a financial intermediary. Where a qualified financial institution lends funds to a
financial intermediary which are on-lent to a qualified recipient -(A) The obligation to maintain the documentation described in paragraph (c)(13)(ii) (A) or (B) of this section shall
apply only to the financial intermediary and not to the qualified financial institution and the provisions of paragraph
(c)(13)(ii) (A) or (B) of this section shall be read so as to impose on the financial intermediary any obligation imposed
on the qualified financial institution.
(B) The financial intermediary shall forward annually to the qualified financial institution a copy of the
documentation it is required to maintain in its records pursuant to the provisions of this paragraph (c)(13)(iii) and shall
notify the Assistant Commissioner (International), the Commissioner of Financial Institutions of Puerto Rico (or his
delegate) and the qualified financial institution pursuant to paragraph (c)(14) of this section upon becoming aware that a
loan has ceased to be an investment in active business assets or a development project under this section. The qualified
financial institution must maintain in its records and have available for inspection the documentation furnished by the
financial intermediary pursuant to this paragraph (c)(13)(iii)(B).
(C) The qualified financial institution shall cause one of its officers (or one of the officers of its agent or trustee, if
any) to prepare a written report documenting his analysis of the documentation furnished by the financial intermediary
purusant to paragraph (c)(13)(iii)(B) of this section, his discussions, both before and after the disbursement of the loan
proceeds, with the financial intermediary's accounting, financial and executive personnel with respect to the proposed
and actual use of the loan proceeds, and his analysis of the annual financial statements of the qualified recipient
including an analysis of the statement of sources and uses of funds. After the loan disbursement, such discussions and
review shall occur annually during the term of the loan. Such report shall include the conclusion that in such officer's
opinion there is no reasonable ground for belief that the qualified recipient is improperly utilizing the funds.

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(14) Procedures for notices and certifications. Notices and certifications to the Assistant Commissioner
(International) required under paragraphs (c) (11), (12) and (13) of this section shall be addressed to the attention of the
Assistant Commissioner (International), Office of Taxpayer Service and Compliance, IN:C, 950 L'Enfant Plaza South,
SW., Washington, DC 20024. Notices and certifications to the Commissioner of Financial Institutions of Puerto Rico
required under paragraphs (c) (11), (12), and (13) of this section shall be addressed as follows: Commissioner of
Financial Institutions, GPO Box 70324, San Juan, Puerto Rico 00936.
(15) Effective date. This paragraph (c) is effective May 13, 1991. It is applicable to investments by a possessions
corporation in a financial institution that are used by a financial institution for investments in accordance with a specific
authorization granted by the Commissioner of Financial Institutions of Puerto Rico (or his delegate) after September 22,
1989. However, the taxpayer may choose to apply § 1.936-10T(c) for periods before June 12, 1991.
OMB Control Numbers Under the Paperwork Reduction Act
Par. 4. The authority for part 602 continues to read as follows:
Authority: 26 U.S.C. 7805.
§ 601.101(c) [Amended]
Par. 5. Section 602.101(c) is amended by removing "1.936-10T(c) . . . 1545-1138" and inserting in its place in the
table:
"1.936-10(c) . . . 1545-1138."
Fred T. Goldberg, Jr.,
Commissioner of Internal Revenue.
Dated: April 15, 1991.
Kenneth W. Gideon,
Assistant Secretary of the Treasury.
[FR Doc. 91-11203 Filed 5-10-91; 8:45 am]
BILLING CODE 4830-01-M

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