New Revenue Procedure Expands Tax-Safe Modifications for REMIC-Held Commercial Mortgage Loans

On September 15, 2009, the Treasury Department and the Internal Revenue Service published Revenue Procedure 2009-45 (Rev. Proc. 2009-45), expanding a Real Estate Mortgage Investment Conduit’s (REMIC) ability to modify troubled, commercial mortgage loans without jeopardizing the REMIC’s tax status or exposing it to prohibited transaction taxes. Similar rules were put into effect to protect the grantor trust status of fixed investment trusts that modify troubled, commercial mortgage loans. Rev. Proc. 2009-45 applies to commercial mortgage loan modifications effected on or after January 1, 2008. For purposes of the revenue procedure, a loan is generally a “commercial mortgage loan” provided that before modification, the loan is not secured by a residence that contains fewer than five dwelling units and is not the principal residence of the issuer of the loan.