Harbor Bancorp & Subsidiaries - Page 51

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               BEGHE, J., concurring:  I agree with and have joined the               
          majority opinion that the bonds in question were taxable                    
          arbitrage bonds within the meaning of section 148(f):  the bond             
          proceeds were used to purchase investments that were not acquired           
          to carry out the governmental purpose; those investments produced           
          excess earnings under section 148(f)(2); and the issuer has                 
          failed to rebate the amount of the excess earnings to the United            
          States.  In enacting section 148(f) of the 1986 Code, Congress              
          repudiated the holding of Washington v. Commissioner, 77 T.C. 656           
          (1981), affd. 692 F.2d 128 (D.C. Cir. 1982), and thereby made               
          clear that "amounts earned" on nonpurpose investments are not               
          limited to amounts that directly inure to the issuer:  they also            
          include excess earnings that enable more than a de minimis part             
          of the bond proceeds to be diverted to pay underwriters, bond and           
          tax counsel, and other service providers.  See S. Rept. 99-313,             
          at 828, 845 (1985), 1986-3 C.B. (Vol. 3) 1, 828, 845.  As a                 
          result, the interest on the bonds ostensibly issued by the                  
          Riverside Housing Authority was not excludable from the income of           
          the bondholders under section 103.                                          
               I write separately to focus on three additional grounds, the           
          first two of which were also advanced by respondent, for holding            
          taxable the bonds in this case (and the bonds in other pending              
          cases).                                                                     







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