Tribal Bonds Financing: the Basics
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Telly: Hi everyone and welcome to today's phone forum which is presented jointly by the offices of Indian Tribal Government and tax-exempt bonds. We appreciate all of you taking the time to be with us today.
I'm Telly Meier, a tax law specialist with the Indian Tribal Government's office or ITG. Joining me for today's presentation is Sandra Westin, a senior tax law specialist with Tax Exempt Bonds or TEB. This phone forum is entitled Tribal Bond Financing: The Basics. Before we begin, I would like to introduce Dante Desiderio. Dante is the executive director of the Native American Financial Officers Association. Dante.
Dante: Thank you, Telly. I want to first start off and thank the Internal Revenue Service for hosting this call on the use of tax exempt debt and other capital available to tribal governments. I want to thank them for inviting us all to participate on the call and just so everybody knows, this is a formal agency call so my commentary is [inaudible 00:01:06] and not the IRS's.
Having said that and [inaudible 00:01:11] we've been concerned about the lack of capital in Indian country from our very beginnings over 30 years ago. We know that the full and open use of tax exempt debt by tribes has been a common concern for almost the same amount of time. And although tribes have been eligible for this tax exempt debt, they have not been afforded the same flexibility as other governments including the use of tax-exempt debt for the purpose of economic development.
During the Recovery Act this economic used restriction was lifted when Congress proposed the two billion and allocation be available for tribal governments for the purpose of just about any economic development project outside of directly financing a gaming establishment.
This means that parking garages, hotels and other hospitality amenities are eligible along with energy and telecommunications projects. However, even though there was tax-exempt debt available for economic development projects, there was some initial confusion over the years in availability of the allocations and the process.
Just over two years ago, the IRS and Treasury opened the allocation to accommodate larger projects and streamline the process. Today we still have about 1.5 billion available for tribal governments to utilize for economic development or up to $300 million per project and the IRS once tried to use the tax-exempt allocation. They want to get the money out the door and it's in our best interest use the allocation so we can move to a more permanent less restrictive fix which the IRS and Treasury supported in a report to Congress a few years ago.
Today there will be a discussion on Clean Renewable Energy Bonds or CREBS which have been used by tribes in the past. There's a fixed amount of allocation available for CREBS as well and the allocation is general going beyond as tribal governments. So if you are thinking about financing an energy project, you may want to prepare now for the upcoming allocation for CREBS.
Again, we're pleased that the IRS along with Treasury have been reaching out to tribes to ensure these allocations are used and ensure all tribes are aware of the significant financing available for tax exempt debt and the tax credit under CREBS. Thank you to all for joining the call and now back over to the content that IRS is responsible for. Telly, back to you.
Telly: Thank you, Dante. Let's get started. Our goal is to provide tribes with information on three types of bonds that may be issued by Indian Tribal Governments. All three types carry a federal subsidy which lowers the tribes' borrowing cost. Before we jump in, I need to disclose that the information contained in this presentation is current and provided for educational purposes. However, it should not be considered official IRS guidance or legal advice. One administrative note, if you did not receive an email containing this live presentation that accompanies this phone forum, please send an e-mail to firstname.lastname@example.org and this material will be e-mailed to you as soon as possible.
We are not specifically covering these slides. They're summaries to the basic takeaway points in today's phone forum and also provides the links we'll be referencing. One last note for clarification. Today when we mention sections, we're referencing to sections of the Internal Revenue Code.
Now let's begin. The three types of bonds we'll be discussing today are tribal bonds under Section 7871(a) through (e), tribal economic development bonds under Section 7871(f) and New Clean Renewable Energy Bond under Section 54A and 54C. Before we delve into these various bond types we'll introduce some bond basics. Sandy, will you start?
Sandy: Yes, thanks. A bond represents an obligation of the borrower to repay the funds borrowed over a specified period of time. Municipal bond is a generic term used to describe bonds issued by a state or local government or governmental agency or an Indian Tribal Government authorized to issue bonds. For today's limited purposes, when we refer to a State Government issuing governmental bonds, that reference includes recognized issuers of Indian Tribal Bonds. Most municipal bonds benefit from a tax-based subsidy from the Federal Government. The subsidy for these bonds takes three basic forms: interest that is tax-exempt to the bond holder, a tax credit allowed to the bond holder and a direct payment to the issuer.
The first of these, the tax-exemption, is the most common form of subsidy for municipal bonds. As provided in Section 103(a) and subject to certain exceptions in Section 103(b), the interest on municipal bonds is not included in the gross income of the investor. When investors file their income tax return, they will pay federal income tax, an interest income from treasury bills, notes and bonds subject to that tax but investors will not pay federal income tax on the interest earned on their tax exempt municipal bonds.
A second form of subsidy from municipal bonds is the tax credit. Instead of receiving an interest payment from the issuer of the bond, investors in tax credit bonds receive a federal tax credit that is equal in value to the interest it replaces.
These bonds can be structured to include a supplemental interest payment when the tax credit alone does not adequately compensate the bond holder. In addition to the credit allowed against the holder's income tax, sometimes issuers will also pay interest to the holder of the bond. Both the tax credit and the supplemental interest payments are treated as income of the bond holder and taxed by the federal government. New clean renewable energy bonds, or as we dub them new CREBS, which we will discuss in detail later, are one type of tax credit bond.
The third form of subsidy for municipal bonds is a direct payment from the federal government to the issuer. These are called direct-pay bonds. At the election of the issuer, certain tax credit bonds including new CREBS may be issued as direct-pay bonds instead of as tax credit bonds. This means that the Federal Government will pay the subsidy directly to the issuer and the bondholder will get taxable interest from the issuer instead of getting a tax credit from the Federal Government.
Telly: Certain credit structures are common to the municipal bond market. These structures vary depending on the revenues of the issuer available to pay debt service to constraints on the issuer's borrowing capacity and the application of financial covenants. All of these factors help investors determine the risk of default on the bonds. In general, predictable and reliable taxes and revenues will decrease the risk of default. In addition, covenants made by the issuer such as rate covenants or limits on additional issuance will help assure investors that the issuer will be able to make debt service payments and not borrow beyond its means.
Municipal bonds are issued in two main credit structures: general obligation bonds and the revenue bonds. General obligation bonds are backed by the full faith and credit of the borrower. Revenue bonds are technically payable solely from one or more specific sources of revenue. An example would be an issuer who pledges the future revenues from payment of residential and commercial water bills to issue bonds to build a new water treatment plant. Such an issuer could pledge to maintain the rated charges customers for water to ensure that the revenues equal 1.2 times the debt service on the bonds.
Sandy: Let's talk in a little more detail about which bonds qualify for the tax exemption. In general, Section 103(a) provides that interest on state or local bonds will not be included in the gross income of the bond holder as long as the bonds are not identified in Section 103(b). Section 103(b) identified non-qualified private activity bonds under Section 141, arbitrage bonds under Section 148 and bonds not meeting the requirements of Section 149. The first two categories of non-qualified bonds are important to today's overview but we will not address the third category which is a catch-all section covering among other things rules regarding bond registration, pool bonds, hedge bonds, advanced refunding bonds and information reporting.
Dante: Let's focus for a minute on this first category of bonds Sandy mentioned that are not tax-exempt, non-qualified private activity bonds. Tax exempt bonds are usually classified as governmental bonds or non-governmental bonds depending on how the proceeds will be used. Usually non-governmental bonds are referred to in the code as private activity bonds. In very general terms, a bond is a private activity bond as a private institute will have use of the bond proceeds or a facilities financed by those proceeds. Private activity bonds are only tax exempt if they are issued for one of the limited purposes specified in the code and meets other requirements specifically imposed by the Code.
Private activity bonds that meet the requirements to be tax exempt are called qualified private activity bonds. In contrast, governmental bonds can be used for a much broader purposes and still be tax exempt. A governmental bond is any obligation issued by a state or local government or Indian Tribal Government that does not meet the Code's definition of a private activity bond.
Governmental bonds are typically issued by a governmental unit to finance assets solely owned and operated by a state or local government or Indian Tribal Government such as government buildings, roads or schools. The proceeds of governmental bonds and the property financed by those proceeds must be used by a state or local government or Indian Tribal Government. For this purpose, use by the Federal Government or instrumentality does not constitute governmental use.
Sandy: We should also talk briefly about the second category of state and local government bonds that are not tax exempt, arbitrage bonds. We want to introduce the concept of arbitrage because it applies to all the bonds we're talking about today. However, slightly different rules may apply depending on which types of bonds. The definition of an arbitrage bond is found in Section 148(a). We're going to illustrate what arbitrage is to an example.
Suppose city A has an excellent credit rating and can borrow a thousand dollars on the tax-exempt market for three years at 6% interest. City A borrows utilizing the tax-exempt market and decides to invest the thousand dollars that it borrowed by purchasing a taxable note bearing 8% interest issued by a corporation who also has an excellent credit rating. Each year City A receives $80 interest income but only pays $60 interest expense allowing for $20 on arbitrage profits because City A is not subject to federal income tax, it can keep the entire $20 each year. This arbitrage arises from the effect of the tax exemption under Section 103 which causes the difference between the taxable and tax-exempt market interest rate. This type of investment activity is generally prohibited under Section 148.
The focus of our presentation today is not to get into detail on arbitrage and the complex requirements under the code and regulations but rather to introduce the concept as it applies to municipal bond financing. Let's turn back to Tribal Bonds. Indian Tribal Governments initiate two types of tax-exempt bonds: tribal bonds that need the requirements under Section 7871(a) through (e) and Tribal Economic Development Bonds that need the requirements of Section 7871(f). Now we will turn to tribal bonds under Section 7871(a) through (e). Telly, will you flesh out these Code sections for us?
Telly: Certainly. There are three basic rules for tribal bonds under Section 7871(a) through (e). First, the issuer must be a federally recognized Indian Tribal Government or subdivision thereof. Second, substantially all of the proceeds must be used in the exercise of any essential governmental function which does not include any function not customarily performed by a state or local government with general taxing powers. Third, generally issuers cannot issue Tax Exempt Private Activity Bonds except to finance the construction of qualified manufacturing facilities that meet certain use, location, ownership and employment requirements.
Let's start with a historic perspective of the first basic rule that the issuer must be a federally recognized Indian Tribe. The Indian Tribal Government Tax Status Act of 1982 added two new sections. 7701(a)(40) and 7871 pertaining to the status of Indian Tribal Government. For two years beginning in 1983, Indian Tribal Governments or their subdivisions were to be treated as state or their political subdivision for specified federal tax purposes including for purposes of the tax-exempt bond interest provision of Section 103. The tax or format of 1984 made permanent the rules treating Indian Tribal Governments as state.
Sandy: Before we go on, we need to look at the statutory definition of an Indian Tribal Government and at the regulations that apply for an Indian Tribal Government to qualify as the issuer of tax-exempt bond. Section 7701(a)(40) defines the term Indian Tribal Government as the governing body of any tribe, band, community, village or group of Indian or if applicable Alaskan natives that is determined by the secretary of the Treasury after consultation with the Secretary of the Interior to exercise governmental functions.
Regulations provide that before an Indian Tribal Government can be treated as a state, the purposes of issuing tax-exempt bonds under Section 103, it must be designated by revenue procedure. If the governing body is not primarily designated by revenue procedure as an Indian Tribal Government and believes that it qualifies for such designation, it may apply for a ruling from the IRS.
The most recent revenue procedure designating Indian Tribal Governments is Revenue Procedure 2008-55 and it was coordinated with a list of federally-recognized Indian tribes published by the Department of Interior, Bureau of Indian Affairs. In general, any Indian tribal entity that appears on the most recent list published by the Department of the Interior in the federal register is designated in Indian Tribal Government for purposes of Section 7701(a)(40). Telly is going to discuss the second basic rule.
Telly: Another consideration for tribal bonds issued under Section 7871(a) through (e) is that the bonds must meet a test of the essential governmental function test. The essential governmental function test has been in place since the original enactment of Section 7871 as a temporary provision of the code by the Indian Tribal Government Tax Status Act in 1982.
In the legislative history to that act, the Senate finance committee indicated that tax-exempt bond financing was not intended to be available to Indian Tribal Governments for commercial or industrial activities or other activities other than essential governmental functions. The House counsel's report provides that schools, street and sewers are specific examples of essential governmental functions.
Section 7871(e) provides that the term essential governmental function does not include any function which is not customarily performed by state local government with general taxing powers. One that was added by the Omnibus Budget Reconciliation Act of 1987, the House report expressed that the issuance of bonds to finance commercial or industrial facilities such as private rental housing, cement factories or mirror factories is not included within the scope of the essential governmental function even if the bonds are technically not private activity bonds.
The House report added that only those activities that are customarily financed with governmental bonds, that is school, roads and governmental buildings, are intended to be within the scope of the essential governmental function test. Notwithstanding that isolated instances of a state or local government issue bonds for another activity might occur.
The 1987 Congress committee noted that a facility which does not qualify as a manufacturing facility for purposes of Section 7871(c)(3) may be financed with taxes and bonds issued by a tribal government provided that the facility satisfied the essential governmental function test. As example, they know that the building used for officers for the tribal government and the lodge owned and operated by a tribal government as it is comparable to lodges customarily owned and operated by State park or recreation agencies.
Sandy: In applying the essential governmental function test, Section 7871(c)(1) requires that a tax-exempt obligation of an Indian Tribal Government be part of an issue substantially all of the proceeds of which are to used and exercised at any essential governmental functions. Regulations provide the general rules that the substantially all test is satisfied if 90% or more the proceeds of the bonds issued are used for an essential governmental function. Note that there are other specific rules for determining what substantially all is. But before we go on, Telly is going to give a specific example.
Telly: Let's use Private Letter Ruling, or PLR, 2009-11001 as our example. The prospective issuer was a county electoral district. The tribe was a federally recognized Indian Tribal Government and the borrower was a recognized political subdivision of the tribe. The tribal subdivision's borrower was established to provide utility services to the tribal population. Tribal law requires that the tribal subdivision furnish these services on a non-profit basis and at a reasonable cost to all areas of the tribe's population.
A committee of the tribal council appointed the board governing the tribal subdivision. The issuer of the county electoral district intended to issue bonds to finance the cost of an electric generating facility. The tribal subdivision borrower would enter into a contract with the county electric district issuer under which the tribal subdivision would require an undivided ownership interest in the electric-generated facility and pay its pro- [inaudible 00:22:04] share of the principle and interest of the bonds.
The IRS concluded that an activity is considered to be an essential governmental function customarily performed by a state and local government only if they follow the three tests were met. First, there are numerous state and local governments with general taxing powers that have been conducting the activity and financing it with tax-exempt governmental bonds. Second, state and local governments with general taxing powers have been conducting the activity and financing it with tax-exempt governmental bonds for many years. Third, the activity is not a commercial or industrial activity.
For purposes of applying this analysis was the activity and the ownership and operation of a facility, the IRS stated that only comparable facilities owned and operated by a state or local government may be taken into account. The IRS also concluded that the first two prongs of this three-part analysis were met. In analyzing the third prong was their ownership and operation of an interest in the power plant as a commercial or industrial activity, the IRS looked to the body of law under Section 501(c)(3) for guidance.
The relevant factory included whether the tribal subdivision would operate the power plant or earn a profit for the tribe in competition with poor profit entity and in a commercial manner. The IRS concluded that ownership and operation of the tribal subdivision interest in the electric-generated facility met the essential governmental function test. Now Sandy is going to talk about the third basic rule of tribal bond under Section 7871(a)(3), the prohibition on issuing private activity bond.
Sandy: There are restrictions under 7871(a) through (e) that prohibit Indian Tribal Governments from issuing private activity bonds. Although we've talked about it generally, let's describe exactly what a private activity bond is under the code. Private activity bonds are bonds issued by a state or local government that meet either the private loan financing test or both of the private business tests.
The private loan financing test asks whether the proceeds of the bonds will be used to make or finance loans directly or indirectly to non-governmental persons. If this test is met, the bonds are private activity bonds. The two private business tests are the private business use test and a private security or payment test. The private business use test generally asks if the proceeds or if the facility finance private proceeds will be used in a trade or business carried on by any person other than a governmental unit.
The private security or payment test generally seeks to determine if the debt service on issue either is derived from payments made with respect to property used in a private trade or was secured by an interest in or by payment in respect of property used in private trade or business. If both the private business use test and the private security or payment test are met then the bonds are private activity bonds.
Telly: That's a mouthful. The takeaway point is that although the interest on both qualified private activity bonds and government bonds is tax exempt, they are different because the proceeds of qualified private activity bonds are used by individuals and the entities other than governmental units, while the proceeds of governmental bonds are generally used by governmental units.
Sandy: As Telly stated earlier, there is an exception to the general rule. The private activity bond issued by Indian Tribal Governments are not tax exempt. The exception is found in Section 7871(c)(3) and applies to bonds to issue, are qualified to finance qualified manufacturing facilities. Specifically, Indian Tribal Governments can issue tax-exempt private activity bonds to finance the acquisition, construction, reconstruction on improvement of property which is of a character subject to the allowance for depreciation and which is part of a manufacturing facility and it's defined in Section 144(a)(12)(C). There are certain requirements that must be satisfied including but not limited to use, location, ownership and employment.
Telly: Let's move on to Tribal Economic Development Bonds or TED Bonds. As previously mentioned, TED Bonds are relatively new category of taxes and bonds that can be issued by Indian Tribal Government. TED Bonds were created by the American Recovery and Reinvestment Act of 2009 and they are governed by Section 7871(f). In the Recovery Act, $2 billion of volume cap was provided to be allocated among tribes for TED Bonds.
Now let's take a step back. I mentioned $2 billion of volume cap were allocated for TED Bonds. What I'm talking about here is the ability to issue bonds. For example, say a tribe received a $50 million TED Bond allocation. The tribe does not receive $50 million instead the tribe received the ability to issue $50 million of TED Bonds. Without the allocation of volume cap, the tribe would be allowed to issue TED Bonds.
All right, moving on. After the Recovery Act was enacted, the IRS issued Notice 2009-51. The notice set forth the application procedures for tribes wanting to apply for an allocation of TED Bond volume cap. In 2009 and 2010, the IRS allocated the $2 billion of volume cap in two batches, approximately $1 billion in each batch. Under the rules that existed then, the volume cap allocations where limited to $30 million or less.
For various reasons, most of the volume cap allocations or about 1.8 billion or 90 percent were forfeited so the IRS went back to the drawing board and in July of 2012, published procedures for applying for an allocation of the forfeited volume cap. Notice 2012-48 revised many of the application procedures and rules. For instance, there are no deadlines for application now. In addition, the $30 billion allocation limit has been altered so that now a tribe can obtain a much larger allocation of volume cap.
The current rules generally limit a tribe's aggregate volume cap allocation to the greater 20% of the total unallocated volume cap or a $100 million. The IRS updates this every two months. For the two-month period beginning on August 1st 2013, the amount that has been in excess of $297 million. The slides of the company this presentation contain a link for you to access the most up-to-date information.
Sandy: To apply for an allocation of volume cap, the applicant must meet certain requirements. Most of the requirements are housekeeping type items meaning the contact person including an address, making sure the application is signed, those sorts of things. I'd like to discuss five of them.
First, the application must be submitted by a federally recognized Indian Tribal Government. This program is not open to state-recognized tribes unless they are also federally recognized tribes. Second, the application must describe in a reasonable detail, the project or projects that will be financed by the TED Bonds. Third, the application must include the expected cost of the project. Fourth, the application must include a plan for financing the project. The documentation from an independent third party showing the bonds are expected to be marketable. I think this point is very important because this fully allocated volume cap, we want to make sure that there is a market for the bonds. Fifth, this is also a statutory requirement. The projects must be located and finally within that applicant tribe Indian reservation. If there is a joint project between tribes, the project must be located within one or more of the applicant's reservations.
Telly: A few minutes ago we discussed standard tribal bonds and some of their limitations. Although TED Bonds give tribes greater flexibility to use tax-exempt financing for economic development projects, they are subject to a few limitations. The standard tribal bonds are not. One such limitation is that the tribe must obtain volume cap. Another is that a bond must expressly be designated as a TED Bond in order to be one. Even though TED Bonds do not require an essential governmental function to be financed, the proceeds of TED Bonds cannot be used to finance any portion of the building in which Class 2 or Class 3 gaming is conducted or housed or any other property actually used in the conduct of those classes of gaming.
IRS Notice 2009-51 provides a safe harbor when it comes to this limitation. It states that a structure will be treated as separate from another building in which gaming is conducted if it has an independent foundation, independent outer walls and an independent roof. Connections between the two adjacent independent walls of separate buildings, for example the doorways cover the walkways or other enclosed common area connections may be disregarded as long as such connections do not affect the structural independence of either wall.
Sandy: The real benefit of TED Bonds is that as opposed to standard tribal bonds, they can be used to finance any project or activities to which state or local government could issue tax exempt bonds under Section 103. TED bonds can be qualified private activity bonds provided they satisfy the same requirements the qualified private activity bonds of state and local governments must satisfy. For example, they must be issued for one or more of the purposes committed by the code, such as, financing water finishing facilities, sewage facilities, solid waste disposal facilities, qualified low income residential rental multi-family housing, facilities for the local finishing of electricity and gas or qualified public educational facilities. With that, I'll turn you over to Telly.
Telly: Before we discuss the details of New Clean Renewable Energy Bonds or as we dubbed them new CREBs, let's get into a little more detail on their subsidy. In particular, for new CREBs, there are two types of federal subsidy. The first is that the holder of a qualified tax credit new CREB is allowed the federal tax credit of a specified amount. The annual amount of the tax credit is equal to the principal amount on the bonds multiplied by a hypothetical annual interest rate set by Treasury. These rates are posted at www.treasurydirect.gov and the address is contained in today's slide.
The idea is that the issuer of the bonds will pay a little or no interest because the bond holder will be compensated by the tax credit. If the tax credit alone is not enough to entice investors to buy the bonds, the issuer will supplement the tax credit with interest payments. Holders of tax credit new CREBs will receive a tax credit equal to 70% of the credit rate on the bonds. The second type of subsidy for tax credit bonds we've introduced under the provision of the new Hiring Incentives to Restore Employment Act of 2010 and authorize issuance of new CREBs to elect irrevocably to receive direct payments from the federal government instead of federal tax credit that otherwise would be allowed to the holders.
New CREBs for which issuers made the selection are commonly referred to as direct pay bonds. Holders of direct pay new CREBs will see the subsidy which is the lesser of the interest payable on the bonds or 70% of the interest which would have been payable if determined that to credit rate. Direct paying new CREBs are taxable bonds and holders are paid ordinary taxable interest. We've been referring to new CREBs added by the HIRE Act in 2010. We should distinguish between prior CREBs or what we call old CREBs.
Sandy: Section 54 contains the provision for Clean Renewable Energy Bonds, also referred to old CREBs. Authority to issue old CREB expired on December 31, 2009. New sections added in 2010, 54A and 54C contained the specific provisions for New CREBs. New CREBs are subject to rules among others regarding positions relating to the allowance of the credit, the amount of the credit, the time limitations within which one proceeds must be spent, reimbursement, arbitrage, maturity limitations, finding a reserve and a credit allowance states.
The issuer may elect to strip the credit and a bond and sell it separately. Notice 2010-28 provides guidance on stripping transactions involving qualified tax credit bonds. New CREBs may be used by certain entities to finance renewable energy projects which may be a wind facility, a close loop biomass facility, an open loop biomass facility, a geothermal or solar energy facility, a small irrigation power facility, a landfill gas facility, a trash combustion facility, a qualified hydro power facility or marine and hydrokinetic renewable energy facility.
Participation in the new CREBs program is limited by the volume cap, authorized by congress for the program. Participants must first apply to the IRS in order to receive a new CREB allocation and then issues the bonds within a specified time period. TEB and counsel are currently in the process of working on a notice that will describe the application and allocation process for the remaining unused new CREBs volume cap. Importantly, regardless of the type of bonds that an Indian tribal government issues, like all state and local government bond issuers, tribes must also be aware of the importance of their due diligence responsibility to implement post-issuance compliant procedures and to regularly monitor those procedures to preserve the status of their tax advantage bonds over the entire life of those bonds. TEB's website contains detailed information for issuers of tax advantaged bonds on monitoring post issuance compliance.
Telly: Before we close out our phone forum, we'd again like to mention that both ITG's and TEB's websites contain articles and other resources on all of today's topics. The link for ITG's website is www.irs.gov/tribes and the link for TEB's website is www.irs.gov/taxexemptbonds. We hope that you will regularly visit our websites for updates. If you have any questions or comments and wish to contact us by email, the address for ITG is email@example.com and for TED is firstname.lastname@example.org. Please put the title of today's talk "Tribal Bond Financing: The Basics" in the subject line. We will follow up with your emails after today. Again, the slides contain the links to these websites and the email addresses for your questions. I just want to thank everyone for attending.