Friday, September 28, 2007
The SEC continues its crackdown on the municipal bond industry as it today announced settled enforcement actions against two California companies for their failure to disclose a fee agreement that created a risk to investors that interest on $650 million of municipal bonds might lose its tax-exempt status. The charges against CDR Financial Products, Inc. (formerly known as Chambers, Dunhill, Rubin & Co.) and Anchor National Life Insurance Company, (now doing business under the name of AIG SunAmerica Life Assurance Company) relate to three separate municipal bond offerings in Florida in 1999 and 2000. The Commission's Orders find that Anchor served as the credit enhancement provider, and that CDR served various roles, in the three offerings. The Commission's Orders further find that the existence of the fee agreement between CDR and Anchor was material for several reasons. Among other things, the bond proceeds were to be used for originating loans, and therefore CDR's receipt of payment on unloaned bond proceeds created a potential conflict with the offerings' purpose.
In addition, tax regulations require bond issuers to have a reasonable expectation that most of the bond proceeds would be loaned out within three years. Without knowledge of the fee agreement, the issuers made calculations, disclosures and certifications relating to their reasonable expectation regarding loan origination within the required time without having all information that was material to that issue. Moreover, the fee agreement also created a risk that the Internal Revenue Service would declare the bonds to be arbitrage bonds, with accompanying potential negative tax consequences.
The Commission's Orders also find that in one bond offering, CDR executed a certificate that was misleading in light of the undisclosed fee agreement.