2005 U.S. Tax Ct. LEXIS 33">*33 P received commitment fees for entering into prior approval
purchase contracts with mortgage originators. The contracts
obligated P to purchase mortgages from originators during a
specified period of time pursuant to a pricing formula but did
not require the originators to sell mortgages to P. The
commitment fees equaled 2.0 percent of the principal amount of
the mortgages. The commitment fees consisted of a 0.5-percent
nonrefundable portion and a 1.5-percent refundable portion. In
the taxable years 1985 through 1990, P treated the 0.5-percent
nonrefundable portion of the commitment fees as premiums
received for writing put options. As a result, when an
originator sold a mortgage to P, P treated the 0.5-percent
portion of the fee as a reduction of its purchase price and
reported this amount as income over the estimated life of the
mortgage. If an originator failed to sell the mortgage to P, P
reported the 0.5 percent of the fee in the year in which the
originator failed to exercise its right to sell the mortgage. R
determined that the nonrefundable2005 U.S. Tax Ct. LEXIS 33">*34 commitment fees should have
been reported in the taxable year that P received the payment.
Held: In substance and form, P's prior approval purchase
contracts were put options, and P properly reported the
nonrefundable portion of the commitment fees as option premiums.
125 T.C. 248">*248 OPINION
RUWE, Judge: Respondent determined deficiencies in petitioner's Federal income taxes in docket No. 3941-99 as follows:
Year Deficiency
____ __________
1985 $ 36,623,695
1986 40,111,127
125 T.C. 248">*249 Petitioner claims overpayments of $ 9,604,085 for 1985 and $ 12,418,469 for 1986.
Respondent determined deficiencies in petitioner's Federal income taxes in docket No. 15626-99 as follows:
Year Deficiency
____ __________
1987 $ 26,200,358
1988 2005 U.S. Tax Ct. LEXIS 33">*35 13,827,654
1989 6,225,404
1990 23,466,338
Petitioner claims overpayments of $ 57,775,538 for 1987, $ 28,434,990 for 1988, $ 32,577,346 for 1989, and $ 19,504,333 for 1990.
In this Opinion, we decide whether certain nonrefundable commitment fees that mortgage originators paid to petitioner to enter into Conventional Multifamily Prior Approval Purchase Contracts (prior approval purchase contracts) are to be recognized when those fees are paid or should be treated as premium for "put" options, which would defer recognition until after delivery or nondelivery of the underlying mortgages. 1 This issue is one of several involved in these cases. 2
2005 U.S. Tax Ct. LEXIS 33">*36 Background
The parties submitted this issue fully stipulated pursuant to
125 T.C. 248">*250 Petitioner was chartered by Congress on July 24, 1970, by title III (Federal Home Loan Mortgage Corporation Act) of the Emergency Home Financing Act of 1970,
A. Multifamily Mortgage Program
A multifamily mortgage loan is a loan secured on a property consisting of an apartment building with more than four residences. Petitioner offered originators two programs for selling multifamily mortgages: (1) The immediate delivery purchase program, and (2) the prior approval conventional multifamily mortgage purchase program (prior approval program).
1. Immediate Delivery Purchase Program
Petitioner designed the immediate delivery purchase program to accommodate the purchase of mortgages already closed and on an originator's2005 U.S. Tax Ct. LEXIS 33">*38 books at the time an originator enters into a purchase contract with petitioner. Although this program is designed for portfolio mortgages, an originator may enter into an immediate delivery purchase contract with petitioner before actually closing on the mortgage. However, if for some reason the mortgage cannot be delivered, petitioner can impose sanctions on an originator.
To participate in the immediate delivery purchase program, an originator telephones petitioner to make an offer 125 T.C. 248">*251 for a purchase contract. When petitioner receives a telephone offer from an originator, that offer is "an irrevocable offer that the [originator] may not modify." Petitioner may accept an offer within 2 business days of receiving the telephone offer. When petitioner accepts an offer, it executes two copies of the purchase contract and mails the contract to an originator. Within 24 hours of receiving the purchase contract, an originator must execute the contract and mail one copy along with a $ 1,500 nonrefundable application/review fee or 0.1 percent of the purchase contract, whichever is greater, to petitioner's applicable regional office. If an originator failed to acknowledge and submit a copy of2005 U.S. Tax Ct. LEXIS 33">*39 a purchase contract, petitioner may disqualify or suspend an originator as an eligible seller to petitioner. After completing a documentation review, underwriting, and property inspections, if any, petitioner's applicable regional office will contact an originator. The mortgages acceptable to petitioner will be identified and purchased.
An originator must deliver the mortgages to petitioner within the 30-calendar-day commitment period. In most cases, the penalty for nondelivery is disqualification or suspension of an originator from eligibility to sell mortgages to petitioner. 4
2005 U.S. Tax Ct. LEXIS 33">*40 Under the immediate delivery purchase program, petitioner established its required net yield when originators offered the contracts. The required net yield is the interest rate that petitioner will receive from the mortgage it purchases from an originator. Petitioner did not charge an upfront commitment fee in its immediate delivery purchase program.
2. Prior Approval Program
Alternatively, originators may sell multifamily mortgages to petitioner under the prior approval program, which began in 1976. Under this program, petitioner entered into contracts 125 T.C. 248">*252 with originators to purchase a multifamily mortgage before the closing date of the mortgage. In general, each executed prior approval purchase contract pertained to a single mortgage, as opposed to a pool of mortgages. Petitioner's promotional pamphlets state that this program offered originators the "peace of mind" of knowing that petitioner would purchase the loan once it closed. The pamphlets also explain that once an originator entered into a prior approval purchase contract with petitioner, "delivery of the loan is still optional, so [the originators] don't have to worry if the deal hits a snag or falls2005 U.S. Tax Ct. LEXIS 33">*41 through completely."
Under the prior approval program, originators were not obligated to deliver the multifamily mortgage to petitioner. Petitioner's Sellers' & Servicers' Guide is part of the contract between an originator and petitioner. Petitioner's Sellers' & Servicers' Guide states: "Delivery under this program is optional. However, unless the optional delivery contract is converted to a mandatory delivery contract within the 60-day optional delivery period, the mortgage may not be delivered and [petitioner] will retain the entire 2-percent commitment fee required pursuant to
The optional delivery date stated in the purchase
contract will be within 60 days from the date [petitioner]
issues the purchase contract plus the 10-business-day period in
which the [originator] may accept the purchase contract. During
the 60-day period, if the [originator] intends to deliver the
mortgage(s) to [petitioner], the [originator] must convert the
optional delivery purchase contract to a 30-day mandatory
delivery purchase contract. * * *
To receive a prior2005 U.S. Tax Ct. LEXIS 33">*42 approval purchase contract from petitioner, an originator must submit a request for prior approval of a specific multifamily project. Along with the request, an originator paid a nonrefundable loan application fee of the greater of $ 1,500 or 0.10 percent of the original principal amount of the mortgage (but not in excess of $ 2,500). After completion of processing, including underwriting and property inspections, petitioner would determine if the mortgage is acceptable. Id. If acceptable, petitioner would execute a prior approval purchase contract (also called Form 6), which it mailed to an originator. An originator wishing to participate in the prior approval program 125 T.C. 248">*253 would execute the Form 6, and mail or deliver it to petitioner no later than 10 business days from the date of petitioner's offer. Form 6 would set forth details of the specific mortgage that an originator could deliver.
Between 1985 and 1991, petitioner required an originator to submit a 2-percent commitment fee with the executed prior approval purchase contract. During the years at issue, the 2-percent commitment fee consisted of a 0.5-percent nonrefundable portion and a 1.5-percent portion that was refundable if2005 U.S. Tax Ct. LEXIS 33">*43 an originator delivered the mortgage under the prior approval purchase contract. 5 Petitioner was entitled to keep the nonrefundable portion when it entered into the agreement. The 0.5-percent portion of the commitment fee received by petitioner was not held in trust or escrow and was subject to unfettered control by petitioner.
If an originator did not deliver the specific mortgage to petitioner, it forfeited the 1.5-percent refundable portion of the commitment fee. Forfeiture of the refundable portion2005 U.S. Tax Ct. LEXIS 33">*44 of the fee in the event of nondelivery functioned as a delivery incentive consistent with petitioner's business preference to buy mortgages in the secondary market. 6
Under the prior approval program, an originator had the right, but not the contractual obligation, to elect at any time during the ensuing 60 days (or in some cases 15 days), to enter into a mandatory commitment to deliver a conforming mortgage to petitioner. Under this program, petitioner committed to purchasing a mortgage when an originator delivered it to petitioner within the delivery period. 7
2005 U.S. Tax Ct. LEXIS 33">*45 Petitioner required originators to service the mortgages they sold to petitioner. Originators received compensation for performing this service (the compensation is known as the minimum servicing spread). For the years at issue, the minimum servicing fee (the originator's retained spread over the 125 T.C. 248">*254 life of the mortgage) was 25 basis points (bps) 8 on mortgages less than $ 1 million, 12.5 bps on mortgages between $ 1 and $ 10 million, and was negotiable on mortgages more than $ 10 million.
To exercise its delivery right under a prior approval purchase contract, an originator was required to give notice of conversion to petitioner and enter into a 30-day "mandatory delivery contract" on Form 64A, Conventional Multifamily Immediate Delivery Purchase Contract and Prior Approval Conversion Amendment. An originator could elect to deliver the multifamily mortgage at petitioner's maximum required net yield or at an alternate required net yield. 9 Petitioner's required net2005 U.S. Tax Ct. LEXIS 33">*46 yield was the rate at which originators could contract to deliver a mortgage under the immediate delivery purchase program. The maximum required net yield was the fixed rate, or locked-in interest rate, that petitioner and an originator had previously agreed upon in Form 6. 10 The alternate required net yield was the rate at which an originator could contract to deliver a mortgage to petitioner under the immediate delivery purchase program as quoted by petitioner on any day during the 60-day (or 15-day) optional delivery period; if the required net yield moved downward, an originator could select the lower required net yield. The purchase price and net yield to petitioner became fixed upon an originator's selection of either the maximum required net yield, or the alternate required net yield on any day during the 60-day (or 15- day) period that an originator elected an alternate required net yield. The purchase price either would reflect a discount from par (100 percent of unpaid principal balance (UPB)) or would be at par, depending on the relationship of the rate on the mortgages (coupon rate) actually tendered by an originator to the "minimum gross yield", which 125 T.C. 248">*255 was the sum of2005 U.S. Tax Ct. LEXIS 33">*47 the required net yield selected and the minimum servicing spread. 11
2005 U.S. Tax Ct. LEXIS 33">*48 For example, suppose an originator and petitioner entered into a prior approval purchase contract with respect to a mortgage in the maximum amount of $ 6 million. The originator paid the 2-percent commitment fee in the amount of $ 120,000. The mortgage was subject to a maximum mortgage interest rate of 12.595 percent and the maximum required net yield to petitioner was 12.470 percent. The difference, 0.125 percent or 12.5 bps, represents the minimum spread to be retained by an originator for servicing the mortgage, or $ 7,500/year. If an originator contemplated selling the subject mortgage to another buyer in lieu of petitioner, it would have to consider the effect of forfeiting the otherwise refundable portion of the commitment fee, or $ 90,000, in comparison to the spread it could obtain with another purchaser.
In the event that petitioner's required net yield on any day during the 60-day (or 15-day) period exceeded the "maximum required net yield", petitioner could be required on that day to contract to purchase conforming mortgages at the maximum required net yield stated on the Form 6, instead of at its current day required net yield. This arrangement effectively ensured that2005 U.S. Tax Ct. LEXIS 33">*49 an originator could make a mortgage loan to a borrower at a particular rate, and would be protected against having to sell it to petitioner at a discount from par, or at an additional discount as a result of an increase in petitioner's required net yield during the 60-day (or 15-day) period. Because it could select the maximum required net yield if market rates increased, an originator was assured of dealing at a rate that was no higher than was specified in the prior approval purchase contract. Thus, an upward movement in interest rates normally would not prevent an originator from delivering a mortgage under the prior approval program. Alternatively, if interest rates went down, an originator would have the benefit (whether in the form of a greater spread or less of a discount from UPB) of selecting an alternate required net yield in lieu of the higher maximum 125 T.C. 248">*256 required net yield as stated in the prior approval purchase contract. 12
2005 U.S. Tax Ct. LEXIS 33">*50 If an originator selected an alternate required net yield, it was required to give notice of this selection no later than the date of conversion to mandatory delivery. If an originator failed to give notice of conversion to a mandatory commitment within 5 business days of selecting an alternate required net yield, the prior approval purchase contract would be terminated, and petitioner would retain the entire 2-percent commitment fee.
Nondelivery generally occurred when the borrower repudiated or defaulted on its arrangement with the originator so that the originator did not have the mortgage to deliver. 13 Unlike originators who entered into an immediate delivery purchase program, when an originator participating in the prior approval program failed to deliver a mortgage, it was not disqualified or suspended as an eligible seller of mortgages to petitioner.
2005 U.S. Tax Ct. LEXIS 33">*51 In computing its taxable income for the years 1985 through 1991, petitioner treated the 0.5-percent nonrefundable portion of the commitment fees as premium received for writing put options in favor of the various mortgage originators. Petitioner generally did not include in taxable income amounts received for the 0.5-percent nonrefundable portion of the commitment fee in the year of receipt. Petitioner deducted such nonrefundable amounts from the cost basis of mortgages purchased when originators delivered mortgages to petitioner. Petitioner amortized these amounts into income over multiyear periods of 7 or 8 years (i.e., the estimated life of the mortgages in petitioner's hands). 14 If an originator failed to elect mandatory delivery of the specified mortgages within the prescribed period, petitioner recognized the nonrefundable portion of the commitment fee in the current year 125 T.C. 248">*257 if the last day of the 60-day (or 15-day) period was within the current year.
2005 U.S. Tax Ct. LEXIS 33">*52 During the years 1985 through 1991, petitioner received the 0.5-percent nonrefundable portion of the commitment fees pursuant to the prior approval program in amounts totaling $ 9,506,398, $ 16,489,524, $ 9,408,907, $ 4,525,606, $ 4,892,445, $ 2,805,392, and $ 41,257, respectively. On its corporate returns for the years 1985 through 1993, petitioner included taxable income of $ 5,636,762, $ 16,627,101, $ 2,035,928, $ 2,601,628, $ 3,213,184, $ 3,563,858, $ 3,569,015, $ 3,569,015, and $ 3,569,015, respectively. The adjustments in dispute in the 1985-90 taxable years are the net differences between the amounts of nonrefundable commitment fees received and reported for tax purposes, as follows:
Nonrefundable Amount in
Commitment Fees Received Reported Dispute 1985-90
_______________ ________ ________ _______________
1985 $ 9,506,398 $ 5,636,762 $ 3,869,636
1986 16,489,524 16,627,101 (137,577)
1987 9,408,907 2,035,928 2005 U.S. Tax Ct. LEXIS 33">*53 7,372,979
1988 4,525,606 2,601,628 1,923,978
1989 4,892,445 3,213,184 1,679,261
1990 2,805,392 3,563,858 (758,466)
In computing its taxable income for the year 1985, petitioner overstated its income attributable to such receipts under its method of accounting in the amount of $ 883,638 as a result of a computational error.
During the years 1985 through 1988, and 1990, originators failed to deliver at least 67 mortgages specified in prior approval purchase contracts to petitioner. 15 See appendix, which lists these 67 contracts. As a result, the 1.5-percent refundable portion of the 2-percent commitment fee was forfeited to petitioner. During the relevant period, these 67 contracts represent approximately 1 percent (by value and number) of all the contracts that petitioner entered into in the prior approval program. Petitioner was not necessarily informed of the precise reason for the nondelivery; petitioner 125 T.C. 248">*258 believes that the typical reason for nondelivery was failure of the underlying mortgage to have been consummated.
2005 U.S. Tax Ct. LEXIS 33">*54 Discussion
Petitioner argues that the 0.5-percent nonrefundable portions of the commitment fees that originators paid to enter into prior approval purchase contracts constitute "put" option 16 premiums, the tax treatment of which could not be determined until originators either exercised the options or allowed them to lapse. Respondent disagrees arguing that the 0.5-percent nonrefundable portions of the commitment fees are not option premium because the prior approval purchase contracts are not option contracts. Respondent argues that petitioner had a fixed right to the nonrefundable portion of the commitment fees when the prior approval purchase contracts were executed and that
2005 U.S. Tax Ct. LEXIS 33">*55
"An option2005 U.S. Tax Ct. LEXIS 33">*56 has historically required the following two elements: (1) A continuing offer to do an act, or to forbear from doing an act, which does not ripen into a contract until accepted; and (2) an agreement to leave the offer open for a specified or reasonable period of time."
An option2005 U.S. Tax Ct. LEXIS 33">*57 contract grants the optionee the right to accept or reject an offer according to its terms within the time and manner specified in the option.
the clear distinction between an option and a contract of sale
is that an option gives a person a right to purchase [or sell]
at a fixed price within a limited period of2005 U.S. Tax Ct. LEXIS 33">*58 time but imposes no
obligation on the person to do so, whereas a contract of sale
contains mutual and reciprocal obligations, the seller being
obligated to sell and the purchaser being obligated to buy.
[
125 T.C. 248">*260 Option payments are not includable in income to the optionor until the option either has lapsed or has been exercised.
An optionor, by the mere granting of an option to sell (" put"),
or buy (" call"), certain property, may not have parted with any
physical or tangible assets; but, just as the optionee thereby
acquires a right to sell, or buy, certain property at a fixed
price during a specified future period2005 U.S. Tax Ct. LEXIS 33">*59 or on or before a
specified future date, so does the optionor become obligated to
accept, or deliver, such property at that price, if the option
is exercised. Since the optionor assumes such obligation, which
may be burdensome and is continuing until the option is
terminated, without exercise, or otherwise, there is no closed
transaction nor ascertainable income or gain realized by an
optionor upon mere receipt of a premium for granting such an
option. The open, rather than closed, status of an unexercised
and otherwise unterminated option to buy (in effect a "call")
was recognized, for Federal income tax purposes, in A. E.
It is manifest, from the nature and consequences of "put" or
"call" option premiums and obligations, that there is no Federal
income tax incidence on account of either the receipt or the
payment of such option premiums, i.e., from the standpoint of
either the optionor or the optionee, unless and until the
options have been terminated, by failure to exercise, 2005 U.S. Tax Ct. LEXIS 33">*60 or
otherwise, with resultant gain or loss. The optionor, seeking to
minimize or conclude the eventual burden of his option
obligation, might pay the optionee, as consideration for
cancellation of the option, an amount equal to or greater than
the premium. Hence, no income, gain, profits, or earnings are
derived from the receipt of either a "put" or "call" option
premium unless and until the option expires without being
exercised, or is terminated upon payment by the optionor of an
amount less than the premium. Therefore, it is considered that
the principle of the decision in North American Oil
involved the receipt of "earnings," is not applicable to
receipts of premiums on outstanding options.
[T]he amount (premium) received by the writer (issuer or
optionor) of a "put" or "call" option which is not exercised
constitutes ordinary income, for Federal income tax purposes,
2005 U.S. Tax Ct. LEXIS 33">*61 under
included in his gross income only for the taxable year in which
the failure to exercise the option becomes final.
* * * * * * *
[W]here a "put" option is exercised, the amount (premium)
received by the writer (issuer or optionor) for granting it
constitutes an offset against the option price, which he paid
upon its exercise, in determining his (net) cost basis of the
securities that he purchased pursuant thereto, for subsequent
gain or loss purposes. * * *
See also
A contract is an option contract when it provides (A) the option to buy or sell, (B) certain property, (C) at a stipulated price, (D) on or before a specific future date or within a specified time period, (E) for consideration.
Petitioner's prior approval purchase contracts exhibit the following characteristics of an option for tax purposes: (1) The prior approval purchase contracts satisfy the formal requirements of option contracts; (2) the economic substance of the prior approval purchase contracts indicates that the contracts are an option; and (3) the rationale for granting open transaction treatment to option premium applies to petitioner's transactions.
1. Formal Requirements of the Option
Petitioner's prior approval purchase contracts provide for the optional delivery of mortgages by an originator. The Sellers' and Servicers' Guide states: "Delivery under this program is optional. However, unless the optional delivery contract is converted to a mandatory delivery contract within the 60- day optional delivery period, the mortgage may not be delivered". (Emphasis added.) The contractual terms specifically provide that an originator has the right, but not an obligation, 2005 U.S. Tax Ct. LEXIS 33">*63 to sell the mortgage to petitioner. The prior approval purchase contract specified the mortgage that petitioner was obligated to purchase if an originator exercised its option. To participate 125 T.C. 248">*262 in the prior approval program, an originator would execute and deliver to petitioner a Form 6, which set forth the details of a specific mortgage to be delivered.
Despite the language of the prior approval purchase contracts, respondent argues that the form of the contracts does not create an option. In support of its argument, respondent quotes the Sellers' & Servicers' Guide, which states: "' Under this program, [petitioner] will contract with the [originator] before the closing date of the mortgage to purchase a multifamily mortgage on a specific existing project. '" Respondent argues that the terms contain an explicit offer to purchase by petitioner and an explicit acceptance by an originator.
We agree that petitioner has made an explicit offer to purchase an originator's mortgage; this is consistent with an option contract. In fact, an essential characteristic of an option contract is that one party is obligated to perform, while the other party may decide whether or not to exercise2005 U.S. Tax Ct. LEXIS 33">*64 his rights under the contract.
Respondent argues that the prior approval purchase contracts are not options because these contracts lack a fixed purchase price that petitioner will pay in the event an originator delivered a mortgage. Respondent contends that the price was not fixed because an originator could deliver a mortgage at either the maximum required net yield or the alternate required net yield, which was not fixed until an originator converted a prior approval purchase contract into a mandatory delivery contract.
The prior approval purchase contracts establish a formula to determine the price, which petitioner and an originator agreed to use. Form 6 identified the amount of the mortgage that petitioner was obligated to purchase. The maximum required net yield provides the minimum price that petitioner would pay to an originator to purchase the mortgage. While the alternate required net yield allowed an originator to potentially2005 U.S. Tax Ct. LEXIS 33">*65 receive a more favorable purchase price, we do not think that this feature of the contract changes the fact that the parties to the prior approval purchase contracts 125 T.C. 248">*263 agreed to a formula that determined the stipulated price. See
In an option contract, the seller agrees to hold an offer open for a specified period of time.
Petitioner granted an option for consideration. The Sellers' and Servicers' Guide states:
A commitment fee of 2 percent of the amount of the purchase
contract must be submitted by the [originator] with the executed
purchase contract. Three-fourths of the commitment fee is
refundable on the Freddie Mac funding date, when the mortgage,
meeting all of the terms of the purchase contract and section
3803, is delivered to the applicable Freddie Mac regional office
on or before the delivery date stated in the purchase contract.
2005 U.S. Tax Ct. LEXIS 33">*66 When petitioner and an originator entered into a prior approval purchase contract, petitioner was entitled to retain the 0.5-percent nonrefundable portion of the commitment fee. This nonrefundable portion of the commitment fee constitutes consideration to petitioner for granting an option.
2. Economic Substance of the Option
An essential part of any option is that its potential value to the optionee and its potential future detriment to the optionor depends on the uncertainty of future events. An optionee is willing to pay for potential future value, and the optionor is willing to accept a potential future detriment for a price. For example, in a typical put option, the optionee is willing to pay a premium to the optionor for the right to sell a security to the optionor at an agreed price sometime in the future. If the market value of the security falls below the exercise price, the optionee can sell the security to the optionor at a price greater than its value on the exercise date. That potential opportunity is what the optionee paid for. Likewise, the premium received by the optionor is compensation for accepting the potential risk of having to purchase at2005 U.S. Tax Ct. LEXIS 33">*67 an unfavorable price. If the market value of the security rises above the exercise price, the option will not be 125 T.C. 248">*264 exercised, and the optionor keeps the option premium for having accepted the risk associated with uncertainty.
The prior approval program involves an option to sell exercisable by an originator. An originator (optionee) can choose to enforce its rights to sell a mortgage to petitioner (optionor) at an agreed pricing formula but is under no legal obligation to do so. During the period when it can exercise its option to sell, the originator can choose between the agreed maximum yield for petitioner or, if interest rates fall, a lesser yield for petitioner. If interest rates rise above the agreed maximum yield, petitioner is required to purchase the mortgage on terms less favorable than they would have been at current rates.
The option of whether to sell the mortgage also protects an originator from the risk it might not close the subject mortgage, making the sale to petitioner impossible. Without the option, the originator's failure to deliver could result in serious sanctions including the originator's disqualification from further dealings with petitioner. An originator2005 U.S. Tax Ct. LEXIS 33">*68 could avoid the commitment fee altogether by entering into an immediate delivery purchase contract; however, a failure to deliver the mortgage to petitioner under an immediate delivery purchase contract can result in sanctions including disqualification of an originator from future mortgage sales to petitioner. In most cases, the penalty for nondelivery is disqualification of an originator from eligibility to sell mortgages to petitioner. Given petitioner's prominent position in the secondary mortgage market, disqualification of an originator would seem to be of great importance to an originator and would explain why an originator is willing to pay the nonrefundable commitment fee in return for retaining the option to deliver the mortgage. The uncertainty of an originator's ability to deliver a mortgage that has not closed and the potential detriment to be suffered in that event, constitutes a future contingency that the optionee is willing to pay to protect itself against. This contingency, while apparently unlikely to occur, is obviously of sufficient concern to originators to justify selection of the prior approval purchase contract and payment of the nonrefundable portion of the2005 U.S. Tax Ct. LEXIS 33">*69 commitment fee, rather than entering into an immediate delivery purchase contract and risk default and the related sanctions. Petitioner, on the other hand, is willing to make delivery 125 T.C. 248">*265 optional, and thereby give up the rights and remedies it would have had under an immediate delivery contract, in return for the nonrefundable portion of the commitment fee.
Respondent argues that the possible forfeiture of the 1.5- percent refundable portion of the commitment fee makes it virtually certain that the mortgage sale will be consummated, negating any real option for an originator. Petitioner acknowledges that potential loss of the refundable portion of the commitment fee was intended to encourage an originator to sell the mortgage if there was a mortgage to sell. Indeed, an originator's agreement to forfeit the nonrefundable portion indicates its intent to follow through with the sale if possible. But the possible inability to deliver and related sanctions were apparently of sufficient concern to originators to justify payment of the 0.5-percent nonrefundable portion in order to make delivery optional. If such risk were not significant, originators could simply have entered into mandatory2005 U.S. Tax Ct. LEXIS 33">*70 delivery contracts and avoided the nonrefundable fee.
Respondent cites
2005 U.S. Tax Ct. LEXIS 33">*71 The Court of Appeals for the Fourth Circuit examined the language of the stock purchase agreement and the economic substance of the transaction to determine whether the contract 125 T.C. 248">*266 was an option. The Court found that under the terms of the agreement, the seller had an unconditional obligation to sell the stock, the limited partnership had an unconditional obligation to purchase the stock, and the agreement did not expressly provide the limited partnership with the option to withdraw from the transaction. The court also found that the economic substance of the stock purchase agreement created indebtedness. To find that the contract created indebtedness, the court relied on "(1) the amount of the contractually specified liquidated damages, (2) the extent to which [the limited partnership] assumed real economic burdens of ownership before settlement, (3) [the limited partnership's] peripheral activities before settlement, and (4) the absence of apparent motives for creating an option contract."
125 T.C. 248">*267 3. Rationale for Option Treatment
The policy rationale for the tax treatment of an option as an open transaction is that the outcome of the transaction is uncertain at the time the payments are made. That uncertainty prevents the proper characterization of the premium at the time it is paid. See
Respondent argues that open transaction treatment is inappropriate because petitioner had a fixed right to the nonrefundable portion of the commitment fee at the time the prior approval purchase contracts were executed. However, the fixed right to a payment does not determine2005 U.S. Tax Ct. LEXIS 33">*74 the tax treatment of an option premium. In
The uncertainty associated with the 0.5-percent nonrefundable portion of the commitment fee is similar to the uncertainty described by the
Had the option been exercised, they [the premium] would have
represented a return of capital, that is, a recovery of a part
of the basis for gain or loss which the property had in the
hands of the seller. In that event they would not have been
income and their return as income when received would have been
improper. * * * But in case of termination of the option2005 U.S. Tax Ct. LEXIS 33">*75 and
abandonment by the Texas Co. of its right to have the payments
applied as a part of the purchase price, it would be apparent
for the first time that the payments represented clear gain to
the petitioner. In that case, since no property would be sold,
there would be no reason to reduce the basis of that retained.
Finally, respondent relies on
The Court found that the taxpayer's "commitment fees were received as a payment for specific services rendered to the borrower in arranging for a favorable loan package for the borrower with an institutional investor."
The commitment fees in
Conclusion
Because the terms and the economic substance of the prior approval purchase contracts indicate that petitioner and originators entered into option contracts, we hold that petitioner 125 T.C. 248">*270 properly treated the 0.5-percent nonrefundable portion of the commitment2005 U.S. Tax Ct. LEXIS 33">*80 fees as option premiums.
To reflect the foregoing,
An appropriate order will be issued.
Appendix
Mortgages Not Delivered To Petitioner Under
The Prior Approval Program
During the taxable years 1985 through 1988, and 1990, the 67 mortgages, which the originators failed to deliver to petitioner, are as follows:
Expiration of 0.5 Percent
Contract 60-day (or 15-day) Nonrefundable
Contract No. Amount Period Fee
____________ ________ __________________ _____________
1 8504030076 $ 1,000,000 5/17/85 $ 5,000
2 8501170017 153,000 6/7/85 765
3 8510110117 430,000 11/10/85 2,150
4 8505100095 100,000 11/15/85 500
5 8511050016 560,000 12/5/85 2,800
6 8511210097 4,200,000 12/21/85 21,000
2005 U.S. Tax Ct. LEXIS 33">*81 7 8605200051 2,939,000 6/2/86 14,695
8 8602070074 269,000 8/11/86 1,345
9 8607310296 1,365,000 8/30/86 6,825
10 8512120155 600,000 9/9/86 3,000
11 8606130126 539,000 9/10/86 2,695
12 8607170569 1,145,000 9/10/86 5,725
13 8602260159 100,000 9/17/86 500
14 8609220258 2,450,000 9/30/86 12,250
15 8609090420 194,000 10/9/86 970
16 8609100388 2,365,000 10/10/86 11,825
17 8609150342 4,020,000 10/15/86 20,100
18 8607110490 1,145,000 10/23/86 5,725
19 8609290083 504,000 10/29/86 2,520
20 8608060428 1,312,000 2005 U.S. Tax Ct. LEXIS 33">*82 11/3/86 6,560
21 8610270173 396,000 11/4/86 1,980
22 8610300720 297,000 11/7/86 1,485
23 8610300728 250,000 11/7/86 1,250
24 8603260291 1,635,000 11/12/86 8,175
25 8610140245 750,000 11/13/86 3,750
26 8605160050 250,000 11/14/86 1,250
27 8607140072 379,000 11/17/86 1,895
28 8610210279 738,000 11/20/86 3,690
29 8611200558 350,000 11/24/86 1,750
30 8610200110 410,000 11/25/86 2,050
31 8610310637 354,000 11/30/86 1,770
32 8611040013 605,000 12/4/86 3,025
33 8612150095 268,000 12/17/86 1,340
34 86112102062005 U.S. Tax Ct. LEXIS 33">*83 300,000 12/21/86 1,500
35 8612240362 1,565,000 2/4/87 7,825
36 8704300034 537,000 7/14/87 2,685
37 8708100024 355,000 10/9/87 1,775
38 8708120349 1,600,000 10/11/87 8,000
39 8708120350 850,000 10/11/87 4,250
40 8708120351 255,000 10/11/87 1,275
41 8708200206 1,400,000 10/19/87 7,000
42 8708200328 515,000 10/19/87 2,575
43 8709255114 1,080,000 10/25/87 5,400
44 8712075071 525,000 1/6/88 2,625
45 8801225093 2,602,000 2/21/88 13,010
46 8802085188 700,000 3/9/88 3,500
47 8803245036 450,000 4/23/88 2005 U.S. Tax Ct. LEXIS 33">*84 2,250
48 8805105385 1,712,000 6/9/88 8,560
49 8808055045 2,900,000 9/4/88 14,500
50 8808265106 2,000,000 9/25/88 10,000
51 8809305154 3,400,000 10/30/88 17,000
52 8810045195 800,000 11/3/88 4,000
53 8810175155 585,000 11/16/88 2,925
54 8811215091 700,000 11/28/88 3,500
55 8811085234 3,600,000 12/8/88 18,000
56 8811095145 750,000 12/9/88 3,750
57 8912125085 4,240,000 1/11/90 21,200
58 8912115094 985,000 1/26/90 4,925
59 9001105083 970,000 2/9/90 4,850
60 9001255072 835,000 2/24/90 4,175
61 9002055068 2,335,000 2005 U.S. Tax Ct. LEXIS 33">*85 3/7/90 11,775
62 9001195042 700,000 4/10/90 3,500
63 9002205045 130,000 5/22/90 650
64 9001175071 5,490,000 6/29/90 27,450
65 9007115075 100,000 8/10/90 500
66 9002215058 256,000 10/1/90 1,280
67 9008135001 667,700 12/31/90 3,335
Total: $ 77,961,700 $ 389,905
1. The adjustments proposed in the notices of deficiency for 1985 through 1990 pertaining to the commitment fee issue included a small amount of commitment fees related to single-family optional delivery mixed in with the prior approval program. The parties have since resolved the commitment fee issue as to the single-family program.↩
2. See
3. All Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code in effect for the taxable years in issue.↩
4. Petitioner's Sellers' & Servicers' Guide, which is part of the contract, states that petitioner "may disqualify or suspend a * * * [an originator] for * * * [an originator's] failure to deliver any documents under a * * * mandatory delivery purchase program, as required by section 0601". Sec. 0601 of the Sellers' and Servicers' Guide states that "Delivery under the * * * immediate delivery purchase programs is mandatory. * * * Delivery is not mandatory under the home mortgage optional delivery purchase programs." The guide also provides that petitioner may disqualify or suspend an originator for "failure to observe or comply with any term or provision of the purchase document". In addition to disqualification and suspension, petitioner "reserves the right to take whatever other action it deems appropriate to protect its interests and enforce its rights".↩
5. In 1982, petitioner charged a commitment fee equal to 2 percent of the commitment amount (the principal amount of the mortgage to be delivered), which was fully refunded to a mortgage originator if the mortgage was delivered. In September 1983, the commitment fee was changed so that the amount charged to a mortgage originator was still 2 percent, with 1 percent being nonrefundable and 1 percent refundable when the mortgage loan was delivered. The commitment fee structure was changed again for the years in issue.↩
6. For Federal income tax purposes, the 1.5-percent refundable portion of the commitment fee was treated by petitioner as a payable upon its receipt and was taken into income only if the underlying mortgages were not delivered to petitioner. Petitioner's tax accounting for the 1.5-percent refundable portion of the fee is not at issue.↩
7. The Sellers' & Servicers' Guide does not use the term "put options" or "put option" to describe these commitment arrangements.↩
8. A basis point (bp) is 1/100th of a percent.↩
9. Effective July 1986, upon electing to effectuate delivery with a mandatory delivery contract with an alternative required net yield, an originator could request an increase in the maximum amount of the mortgage to be delivered. The amount of any increase was at the sole discretion of petitioner. Upon the request for an increase, an originator was required to remit $ 1,000 plus 2 percent of the increased mortgage amount within 24 hours. Of this 2 percent, 0.5 percent was nonrefundable and, if approved, petitioner was entitled to retain the fee. Upon purchase of the mortgage, petitioner refunded 1.5 percent of the total mortgage amount as increased.↩
10. The maximum required net yield is the maximum interest rate that petitioner may receive from the mortgage delivered by an originator.↩
11. When an originator serviced a mortgage for petitioner, it received the amount of interest on the mortgage in excess of the required net yield. The minimum servicing spread is the difference between the maximum mortgage interest rate and the maximum required net yield.↩
12. If petitioner's required net yield on the day of delivery election was lower than the maximum required net yield, an originator holding a higher than current market-rate mortgage would normally obtain a spread greater than the minimum servicing spread specified in
13. An originator finding a more attractive opportunity for disposing of a mortgage had to consider the forfeiture of the 1.5-percent refundable portion of the commitment fee.↩
14. When a mortgage was delivered in the same year that petitioner received the commitment fee, petitioner recognized the nonrefundable portion of the commitment fee in the year of receipt, to the extent of amortization for that year.↩
15. Petitioner was unable to locate records of the prior approval purchase contracts executed in 1989 that would identify the mortgages from that year, if any, where the specified mortgages were undelivered.↩
16. A "put" option gives the option holder the right, but not the obligation, to sell something at an agreed upon price or pricing formula for a limited period of time.↩
17. In addition to the fees in issue, petitioner also received a nonrefundable application/review fee of the greater of $ 1,500 or 0.10 percent of the original principal amount of the mortgage (but not in excess of $ 2,500). This fee, which is not at issue, appears to compensate petitioner for the type of services for which the taxpayer received commitment fees in
18. Loans are not sales transactions. "When a taxpayer receives a loan, he incurs an obligation to repay that loan at some future date. Because of this obligation, the loan proceeds do not qualify as income to the taxpayer."