As market participants evaluate their loan portfolios and implement strategies to transition away from the London Interbank Offered Rate (“LIBOR”), they must address not only third-party loans, but related-party loans as well.Continue Reading LIBOR Phase Out – Tax Implications in the Context of Related-Party Loans
With the inclusion of the Adjustable Interest Rate (LIBOR) Act (the “LIBOR Act”) as Division U of H.R. 2471, Consolidated Appropriations Act, 2022 (the “Appropriations Act”) passed by the U.S. House of Representatives on 9 March 2022 and the Senate on 10 March 2022, the United States is on the cusp of a federal solution for legacy LIBOR-linked contracts that contain inadequate fallback provisions, or none at all. Indeed, the final version of the legislation provides additional legal certainty with respect to the use of non-SOFR benchmarks not included in the earlier version of the legislation passed by the U.S. House of Representatives.
On 30 December 2021, the U.S. Internal Revenue Service (IRS) published final regulations for IBOR transition. Our 7 January 2022 Legal Update provides background on the principle U.S. federal income tax concern with IBOR-related amendments to existing contracts, an overview of previous IRS guidance aimed at addressing the concern, the types of modifications that can fit within the final regulations, the relief provided for modifications that do fit, and a few questions left open by the IRS.
We are in the final days of LIBOR as we know it. Partner, Ash McDermott, discusses the recent advances in the export finance community toward LIBOR transition, with a specific focus on the question of whether export credit agencies should publish general “umbrella” guidance that would permit export loan documentation to transition to a recommended alternative rate without the need for export credit agency consent.
Read the full article (PDF).
Further to our post yesterday, on 8 December 2021, after a brief debate, the Adjustable Interest Rate (LIBOR) Act of 2021 was passed by the U.S. House of Representatives by a 415-9 vote. The bill, which was introduced in the House on 22 July 2021, now moves to the Senate for consideration. The bill’s sponsor, Rep. Brad Sherman, praised the strong bipartisan work to “solve a crisis before it hits. The U.S. Senate is expected to take up the bill soon, where it is expected to enjoy bipartisan support. The U.S. Alternative Reference Rates Committee applauded the passage as “vital to the success of the transition away from LIBOR.”
On 7 December 2021, the Consumer Financial Protection Bureau (“CFPB”) issued a Final Rule to facilitate LIBOR transition, via amendments to Regulation Z. The amendments take effect on 1 April 2022, and compliance becomes mandatory on 1 October 2022.
The interest rate benchmark LIBOR is being wound down and the UK Financial Conduct Authority has announced how it will use its powers under the UK Benchmarks Regulation to aid the orderly wind-down of sterling- and yen-linked “tough legacy contracts.”
With fewer than 30 days until the cessation of LIBOR, another piece of the puzzle has fallen into place for U.S. dollar LIBOR transition. On 30 November 2021, Refinitiv, the ARRC-preferred publisher of spread-adjusted SOFR-based fallback rates, announced that its USD IBOR Institutional Cash Fallbacks (“Institutional Fallbacks”), launched on 11 August 2021 as prototype rates, are now available for use as production benchmarks.
On 20 October 2021, in a Joint Statement on Managing the LIBOR Transition, the Board of Governors of the Federal Reserve System, Consumer Financial Protection Bureau (“CFPB”), Federal Deposit Insurance Corporation, National Credit Union Administration, Office of the Comptroller of the Currency, and State Bank and Credit Union Regulators (the “Regulators”) emphasized their expectations that supervised institutions will transition away from LIBOR in an orderly fashion by the end of 2021. Transition preparedness will be an increasing area of supervisory focus and review.
Since publication of our Eye on IBOR Transition article in the Winter 2020 issue of the Mayer Brown Structured Finance Bulletin, IBOR transition activity has accelerated significantly, in large part due to (a) the effectiveness on 25 January 2021 of the ISDA 2020 IBOR Fallbacks Protocol and the related Supplement No. 70 to the 2006 ISDA Definitions; (b) the announcements on 5 March 2021 by ICE Benchmark Administration, LIBOR’s administrator (“IBA”), and the UK Financial Conduct Authority, IBA’s regulator, that IBA will cease publication of the majority of LIBOR settings after publication on 31 December 2021, and of all remaining settings after publication on 30 June 2023; (c) the change in trading conventions for interdealer linear swaps from LIBOR to the Secured Overnight Financing Rate (“SOFR”) on 26 July 2021 pursuant to the Commodity Futures Trading Commission’s “SOFR First” Transition Initiative, and (d) the formal recommendation on 29 July 2021 by the Alternative Reference Rates Committee of a SOFR term rate.
Read the full article (PDF).