Secondary Lenders

Thus, the CFI overturned a 2007 ruling of the Washington Court of Appeals, Division II, upholding the Court's Department of Revenue Ruling that HomeStreet was not eligible for a deductible for interest withheld to service a loan.

The HomeStreet Group grants credit for the acquisition of real estate and sell or securitize around 90 per cent of these credits on the secondary markets to lenders or private equity holders such as Fannie Mae. Credits are either fully or partially securitised without HomeStreet withholding interest ("servicing released"), or by sale or securitisation of part of the credit with retention of the right to use the credit ("servicing retained").

In the case of service-oriented sales or securitisation transactions, the Mortgagor will continue to make capital and interest rate repayments to HomeStreet, which will service the Senior Credit Facility on account of the secondary lenders or investor. HomStreet will pay the amount of capital and part of the interest charged on such borrowings to the secondary lenders or investor and retain the remainder of the interest as a service charge - usually 0.35 to 0.40 per cent of the interest received.

HomeStreet's retention of interest depends on the repayment of capital and interest by the debtor and may vary based on the amount and maturity of the debt, interest fluctuation and other variables such as advance payments or debt defaults. Appeals court: Any interest withheld as a fee to service a credit does not represent'interest derivatives'.

Article 4292 provides for a reduction from the B&O rate for'amounts deriving as interest on investment or loan backed mainly by first mortgage or fiduciary contracts on non-volatile real estate'. "By finding that HomeStreet was not eligible for the deductions, the Appeals Tribunal confirmed the Court's ruling that the withheld interest premium was in essence an indemnity payable under HomeStreet's arrangements with secondary lenders and capital providers and not the effective interest receivable.

The Court of Appeal justified this by stating that'interest' is deemed to be a payment obtained in return for the use of principal, and since HomeStreet had already obtained the full amount of its principal for the credits sells on the secondary markets, the service charges did not represent interest for the purpose of offset.

High Court: Interest withheld, collected as royalties for the provision of a service or otherwise, is "derived from interest". "The Supreme Court overturned the Court of Appeal by a qualified majority ruling, stating that "[u]nder did not accept the clear significance of the RCW 82.04. 4,292 Income taxes are deductible for "interest deducted amounts" and the amount withheld by HomeStreet in service of the loan is deducted from the interest on the loan.

" The Supreme Court's assessment of this finding differed significantly from that of the Court of Appeal. Whereas the Court of Appeal's ruling related to the fact that HomeStreet "owned" the loan and the characterisation of the sums obtained as service charges and no longer as interest per se, the Supreme Court's investigation focused on the plaintext form of the law and the fact that the sums obtained were derived from the flow of interest on the loan granted by HomeStreet.

According to the Supreme Court, the legal concept of'amounts deriving from interest' was clear and merely demanded that the amount obtained be deriving from interest which, in its opinion, did not function to the exclusion of interest withheld as a service charge. Finally, the Supreme Court dismissed the Ministry of Finance's reasoning that, given the clear importance of the legal terminology, the statutes should be interpreted strictly and found that it was not necessary to interpret the significance of the statutes by examining the legislator's intention at the time of the adoption of the intention or by examining the characterisation of the sums obtained as service charges in relation to the interest yield.

According to the Court of Appeal's ruling, lenders were substantially excluded from deducting sums resulting from interest on credits they were selling or securitising on the secondary markets, which in most cases would restrict the amount of deductions to a relatively small part of the overall loan portfolios granted by a single creditor.

On the contrary, the Supreme Court's ruling should authorise lenders to deduct any amount resulting from the flow of interest on investment or loan securitised mainly by first mortgage or fiduciary contracts on real estate, even if the loan is securitised or resold on the secondary markets on a service-based footing.