SUBCHAPTER I—GENERAL PROVISIONS
§661. Congressional declaration of policy
It is declared to be the policy of the Congress and the purpose of this chapter to improve and stimulate the national economy in general and the small-business segment thereof in particular by establishing a program to stimulate and supplement the flow of private equity capital and long-term loan funds which small-business concerns need for the sound financing of their business operations and for their growth, expansion, and modernization, and which are not available in adequate supply: Provided, however, That this policy shall be carried out in such manner as to insure the maximum participation of private financing sources.
It is the intention of the Congress that the provisions of this chapter shall be so administered that any financial assistance provided hereunder shall not result in a substantial increase of unemployment in any area of the country. It is the intention of the Congress that in the award of financial assistance under this chapter, when practicable, priority be accorded to small business concerns which lease or purchase equipment and supplies which are produced in the United States and that small business concerns receiving such assistance be encouraged to continue to lease or purchase such equipment and supplies.
(Pub. L. 85–699, title I, §102, Aug. 21, 1958, 72 Stat. 689; Pub. L. 102–366, title IV, §416, Sept. 4, 1992, 106 Stat. 1019.)
Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 85–699, which enacted this chapter, amended sections 77c, 77ddd, 80a–18, 633 and 636 of this title, and sections 217 [now 212], 218 [now 213], 221 [now 216], 657, 1006 and 1014 of Title 18, Crimes and Criminal Procedure, repealed section 352a of Title 12, Banks and Banking, and enacted notes set out under this section and section 352a of Title 12. Sections 212 and 213 of Title 18, as renumbered by Pub. L. 87–849, were subsequently repealed. For complete classification of this Act to the Code, see Short Title note set out below and Tables.
Amendments
1992—Pub. L. 102–366 inserted at end "It is the intention of the Congress that in the award of financial assistance under this chapter, when practicable, priority be accorded to small business concerns which lease or purchase equipment and supplies which are produced in the United States and that small business concerns receiving such assistance be encouraged to continue to lease or purchase such equipment and supplies."
Statutory Notes and Related Subsidiaries
Short Title of 2018 Amendment
Pub. L. 115–371, §1, Dec. 21, 2018, 132 Stat. 5106, provided that: This Act [amending section 696 of this title] may be cited as the "Small Business Access to Capital and Efficiency Act" or the "Small Business ACE Act".
Pub. L. 115–333, §1, Dec. 19, 2018, 132 Stat. 4488, provided that: "This Act [amending sections 662, 681, and 687 of this title] may be cited as the 'Spurring Business in Communities Act of 2017'."
Pub. L. 115–187, §1, June 21, 2018, 132 Stat. 1489, provided that: "This Act [amending section 683 of this title] may be cited as the 'Small Business Investment Opportunity Act of 2017'."
Short Title of 2004 Amendment
Pub. L. 108–232, §1, May 28, 2004, 118 Stat. 649, provided that:"This Act [amending section 697e of this title] may be cited as the 'Premier Certified Lenders Program Improvement Act of 2004'."
Short Title of 2001 Amendment
Pub. L. 107–100, §1, Dec. 21, 2001, 115 Stat. 966, provided that: "This Act [amending sections 636, 683, 687d, 687e, and 697 of this title, section 1833a of Title 12, Banks and Banking, and section 1014 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as notes under sections 636, 683, and 697 of this title] may be cited as the 'Small Business Investment Company Amendments Act of 2001'."
Short Title of 2000 Amendment
Pub. L. 106–554, §1(a)(8) [§1(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A-653, provided that: "This section [enacting part B of subchapter III of this chapter, amending section 683 of this title, section 109 of Title 11, Bankruptcy, and section 1464 of Title 12, Banks and Banking, and amending provisions set out as a note under section 631 of this title] may be cited as the 'New Markets Venture Capital Program Act of 2000'."
Pub. L. 106–554, §1(a)(9) [title III, §301], Dec. 21, 2000, 114 Stat. 2763, 2763A-684, provided that: "This title [enacting section 697g of this title, amending sections 695 to 697 and 697e of this title, enacting provisions set out as a note under section 697g of this title, and repealing provisions set out as a note under section 697e of this title] may be cited as the 'Certified Development Company Program Improvements Act of 2000'."
Pub. L. 106–554, §1(a)(9) [title IV, §401], Dec. 21, 2000, 114 Stat. 2763, 2763A-690, provided that: "This title [amending sections 662, 682, 683, and 687b of this title] may be cited as the 'Small Business Investment Corrections Act of 2000'."
Short Title of 1999 Amendment
Pub. L. 106–9, §1, Apr. 5, 1999, 113 Stat. 17, provided that: "This Act [amending sections 662, 683, 687, and 687m of this title and provisions set out as notes under this section and section 631 of this title] may be cited as the 'Small Business Investment Improvement Act of 1999'."
Short Title of 1994 Amendment
Pub. L. 103–403, title V, §501, Oct. 22, 1994, 108 Stat. 4198, provided that: "This title [enacting section 697f of this title and provisions set out as a note under section 697f of this title] may be cited as the 'Small Business Prepayment Penalty Relief Act of 1994'."
Short Title of 1992 Amendment
Pub. L. 102–366, title IV, §401, Sept. 4, 1992, 106 Stat. 1007, provided that: "This Act [probably means "This title", amending this section and sections 662, 682, 683, 685 to 687, 687b, and 687l of this title, enacting provisions set out as notes under this section and sections 681 and 687b of this title, and amending provisions set out as a note under section 631 of this title] may be cited as the 'Small Business Equity Enhancement Act of 1992'."
Short Title of 1988 Amendment
Pub. L. 100–590, title II, §201, Nov. 3, 1988, 102 Stat. 3007, provided that: "This title [amending sections 694b and 694c of this title and enacting provisions set out as notes under section 694b of this title] may be cited as the 'Preferred Surety Bond Guarantee Program Act of 1988'."
Short Title of 1972 Amendment
Pub. L. 92–595, §1, Oct. 27, 1972, 86 Stat. 1314, provided: "That this Act [enacting sections 687i and 687j of this title and amending sections 80a–18, 633, 636, 662, 681, 683, 684, and 686 of this title] may be cited as the 'Small Business Investment Act Amendments of 1972'."
Short Title of 1967 Amendment
Pub. L. 90–104, title II, §201, Oct. 11, 1967, 81 Stat. 269, provided that: "This title [amending sections 681, 682, 683, 684, 686, 687, 687b, and 692 of this title] may be cited as the 'Small Business Investment Act Amendments of 1967'."
Short Title of 1966 Amendment
Pub. L. 89–779, §1, Nov. 6, 1966, 80 Stat. 1359, provided: "That this Act [enacting sections 687e, 687f, 687g, and 687h of this title and amending sections 633, 671, 687, 687a, 687b, and 687c of this title, and sections 5315 and 5316 of Title 5, Government Organization and Employees] may be cited as the 'Small Business Investment Act Amendments of 1966'."
Short Title of 1964 Amendment
Pub. L. 88–273, §1, Feb. 28, 1964, 78 Stat. 146, provided: "That this Act [enacting section 687d and amending sections 682, 686, and 687 of this title] may be cited as the 'Small Business Investment Act Amendments of 1963'."
Short Title of 1961 Amendment
Pub. L. 87–341, §1, Oct. 3, 1961, 75 Stat. 752, provided: "That this Act [enacting sections 687a, 687b, and 687c of this title, amending sections 633, 662, 681, 683 to 687, and 696 of this title, and enacting provisions set out as notes under sections 631 and 686 of this title] may be cited as the 'Small Business Investment Act Amendments of 1961'."
Short Title of 1960 Amendment
Pub. L. 86–502, §1, June 11, 1960, 74 Stat. 196, provided: "That this Act [amending sections 662, 681, 682, and 684 of this title, and section 26–610 of the District of Columbia Code, 1973 edition] may be cited as the 'Small Business Investment Act Amendments of 1960'."
Short Title
Pub. L. 85–699, title I, §101, Aug. 21, 1958, 72 Stat. 689, as amended by Pub. L. 106–9, §2(d)(3), Apr. 5, 1999, 113 Stat. 18, provided that: "This Act [enacting this chapter, amending sections 77c, 77ddd, 80a–18, 633 and 636 of this title, and sections 217 [now 212], 218 [now 213], 221 [now 216], 657, 1006 and 1014 of Title 18, Crimes and Criminal Procedure, repealing section 352a of Title 12, Banks and Banking, and enacting notes set out under this section and former section 352a of title 12] may be cited as the 'Small Business Investment Act of 1958'."
Regulations
Pub. L. 102–366, title IV, §415, Sept. 4, 1992, 106 Stat. 1018, provided that: "Notwithstanding any law, rule, regulation or administrative moratorium, except as otherwise expressly provided in this Act [probably means "this title", see Short Title of 1992 Amendment note above], the Small Business Administration shall—
"(1) within 90 days after the date of enactment of this Act [Sept. 4, 1992], publish in the Federal Register proposed rules and regulations implementing this Act and the amendments made by this Act; and
"(2) within 180 days after the date of enactment of this Act, publish in the Federal Register final rules and regulations implementing this Act, and enter such contracts as are necessary to implement this Act and the amendments made by this Act."
Effect of Small Business Equity Enhancement Act of 1992 on Securities Laws
Pub. L. 102–366, title IV, §418, Sept. 4, 1992, 106 Stat. 1019, provided that: "Nothing in this Act [probably means "this title", see Short Title of 1992 Amendment note above] (and no amendment made by this Act) shall be construed to affect the applicability of the securities laws, as that term is defined in section 3(a)(47) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(47)], or any of the rules and regulations thereunder, or otherwise supersede or limit the jurisdiction of the Securities and Exchange Commission or the authority at any time conferred under the securities laws."
§662. Definitions
As used in this chapter—
(1) the term "Administration" means the Small Business Administration;
(2) the term "Administrator" means the Administrator of the Small Business Administration;
(3) the terms "small business investment company", "company", and "licensee" mean a company approved by the Administration to operate under the provisions of this chapter and issued a license as provided in section 681 of this title;
(4) the term "State" includes the several States, the territories and possessions of the United States, the Commonwealth of Puerto Rico, and the District of Columbia;
(5) the term "small-business concern" shall have the same meaning as in the Small Business Act [15 U.S.C. 631 et seq.], except that, for purposes of this chapter—
(A) an investment by a venture capital firm, investment company (including a small business investment company) employee welfare benefit plan or pension plan, or trust, foundation, or endowment that is exempt from Federal income taxation—
(i) shall not cause a business concern to be deemed not independently owned and operated regardless of the allocation of control during the investment period under any investment agreement between the business concern and the entity making the investment;
(ii) shall be disregarded in determining whether a business concern satisfies size standards established pursuant to section 3(a)(2) of the Small Business Act [15 U.S.C. 632(a)(2)]; and
(iii) shall be disregarded in determining whether a small business concern is a smaller enterprise; and
(B) in determining whether a business concern satisfies net income standards established pursuant to section 3(a)(2) of the Small Business Act [15 U.S.C. 632(a)(2)], if the business concern is not required by law to pay Federal income taxes at the enterprise level, but is required to pass income through to the shareholders, partners, beneficiaries, or other equitable owners of the business concern, the net income of the business concern shall be determined by allowing a deduction in an amount equal to the sum of—
(i) if the business concern is not required by law to pay State (and local, if any) income taxes at the enterprise level, the net income (determined without regard to this subparagraph), multiplied by the marginal State income tax rate (or by the combined State and local income tax rates, as applicable) that would have applied if the business concern were a corporation; and
(ii) the net income (so determined) less any deduction for State (and local) income taxes calculated under clause (i), multiplied by the marginal Federal income tax rate that would have applied if the business concern were a corporation;
(6) the term "development companies" means enterprises incorporated under State law with the authority to promote and assist the growth and development of small-business concerns in the areas covered by their operations;
(7) the term "license" means a license issued by the Administration as provided in section 681 of this title;
(8) the term "articles" means articles of incorporation for an incorporated body and means the functional equivalent or other similar documents specified by the Administrator for other business entities;
(9) the term "private capital"—
(A) means the sum of—
(i) the paid-in capital and paid-in surplus of a corporate licensee, the contributed capital of the partners of a partnership licensee, or the equity investment of the members of a limited liability company licensee; and
(ii) unfunded binding commitments, from investors that meet criteria established by the Administrator, to contribute capital to the licensee: Provided, That such unfunded commitments may be counted as private capital for purposes of approval by the Administrator of any request for leverage, but leverage shall not be funded based on such commitments; and
(B) does not include any—
(i) funds borrowed by a licensee from any source;
(ii) funds obtained through the issuance of leverage; or
(iii) funds obtained directly or indirectly from any Federal, State, or local government, or any government agency or instrumentality, except for—
(I) funds obtained from the business revenues (excluding any governmental appropriation) of any federally chartered or government-sponsored corporation established prior to October 1, 1987;
(II) funds invested by an employee welfare benefit plan or pension plan; and
(III) any qualified nonprivate funds (if the investors of the qualified nonprivate funds do not control, directly or indirectly, the management, board of directors, general partners, or members of the licensee);
(10) the term "leverage" includes—
(A) debentures purchased or guaranteed by the Administration;
(B) participating securities purchased or guaranteed by the Administration; and
(C) preferred securities outstanding as of October 1, 1995;
(11) the term "third party debt" means any indebtedness for borrowed money, other than indebtedness owed to the Administration;
(12) the term "smaller enterprise" means any small business concern that, together with its affiliates—
(A) has—
(i) a net financial worth of not more than $6,000,000, as of the date on which assistance is provided under this chapter to that business concern; and
(ii) an average net income for the 2-year period preceding the date on which assistance is provided under this chapter to that business concern, of not more than $2,000,000, after Federal income taxes (excluding any carryover losses) except that, for purposes of this clause, if the business concern is not required by law to pay Federal income taxes at the enterprise level, but is required to pass income through to the shareholders, partners, beneficiaries, or other equitable owners of the business concern, the net income of the business concern shall be determined by allowing a deduction in an amount equal to the sum of—
(I) if the business concern is not required by law to pay State (and local, if any) income taxes at the enterprise level, the net income (determined without regard to this clause), multiplied by the marginal State income tax rate (or by the combined State and local income tax rates, as applicable) that would have applied if the business concern were a corporation; and
(II) the net income (so determined) less any deduction for State (and local) income taxes calculated under subclause (I), multiplied by the marginal Federal income tax rate that would have applied if the business concern were a corporation; or
(B) satisfies the standard industrial classification size standards established by the Administration for the industry in which the small business concern is primarily engaged;
(13) the term "qualified nonprivate funds" means any—
(A) funds directly or indirectly invested in any applicant or licensee on or before August 16, 1982, by any Federal agency, other than the Administration, under a provision of law explicitly mandating the inclusion of those funds in the definition of the term "private capital";
(B) funds directly or indirectly invested in any applicant or licensee by any Federal agency under a provision of law enacted after September 4, 1992, explicitly mandating the inclusion of those funds in the definition of the term "private capital"; and
(C) funds invested in any applicant or licensee by one or more State or local government entities (including any guarantee extended by those entities) in an aggregate amount that does not exceed 33 percent of the private capital of the applicant or licensee;
(14) the terms "employee welfare benefit plan" and "pension plan" have the same meanings as in section 3 of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1002], and are intended to include—
(A) public and private pension or retirement plans subject to such Act [29 U.S.C. 1001 et seq.]; and
(B) similar plans not covered by such Act that have been established and that are maintained by the Federal Government or any State or political subdivision, or any agency or instrumentality thereof, for the benefit of employees;
(15) the term "member" means, with respect to a licensee that is a limited liability company, a holder of an ownership interest or a person otherwise admitted to membership in the limited liability company;
(16) the term "limited liability company" means a business entity that is organized and operating in accordance with a State limited liability company statute approved by the Administration;
(17) the term "long term", when used in connection with equity capital or loan funds invested in any small business concern or smaller enterprise, means any period of time not less than 1 year;
(18) the term "Energy Saving debenture" means a deferred interest debenture that—
(A) is issued at a discount;
(B) has a 5-year maturity or a 10-year maturity;
(C) requires no interest payment or annual charge for the first 5 years;
(D) is restricted to Energy Saving qualified investments; and
(E) is issued at no cost (as defined in section 661a 1 of title 2) with respect to purchasing and guaranteeing the debenture;
(19) the term "Energy Saving qualified investment" means investment in a small business concern that is primarily engaged in researching, manufacturing, developing, or providing products, goods, or services that reduce the use or consumption of non-renewable energy resources; and
(20) the term "underlicensed State" means a State in which the number of licensees per capita is less than the median number of licensees per capita for all States, as calculated by the Administrator.
(Pub. L. 85–699, title I, §103, Aug. 21, 1958, 72 Stat. 690; Pub. L. 86–502, §3, June 11, 1960, 74 Stat. 196; Pub. L. 87–341, §2, Oct. 3, 1961, 75 Stat. 752; Pub. L. 92–595, §2(a), Oct. 27, 1972, 86 Stat. 1314; Pub. L. 94–305, title I, §106(a), June 4, 1976, 90 Stat. 666; Pub. L. 102–366, title IV, §410, Sept. 4, 1992, 106 Stat. 1017; Pub. L. 104–208, div. D, title II, §208(a), Sept. 30, 1996, 110 Stat. 3009–739; Pub. L. 105–135, title II, §213, Dec. 2, 1997, 111 Stat. 2601; Pub. L. 106–9, §2(c), Apr. 5, 1999, 113 Stat. 17; Pub. L. 106–554, §1(a)(9) [title IV, §402], Dec. 21, 2000, 114 Stat. 2763, 2763A-690; Pub. L. 110–140, title XII, §1205(b), Dec. 19, 2007, 121 Stat. 1773; Pub. L. 115–333, §2(1), Dec. 19, 2018, 132 Stat. 4488.)
Editorial Notes
References in Text
For definition of "this chapter", referred to in text, see References in Text note set out under section 661 of this title.
The Small Business Act, referred to in par. (5), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified to chapter 14A (§631 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 631 of this title and Tables. The term "small-business concern" is defined in section 632 of this title.
The Employee Retirement Income Security Act of 1974, referred to in par. (14), is Pub. L. 93–406, Sept. 2, 1974, 88 Stat. 829, which is classified principally to chapter 18 (§1001 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 29 and Tables.
Section 661a of title 2, referred to in par. (18)(E), was in the original "section 502 of the Credit Reform Act of 1990", which was translated as reading "section 502 of the Federal Credit Reform Act of 1990", to reflect the probable intent of Congress.
Amendments
2018—Par. (20). Pub. L. 115–333 added par. (20).
2007—Pars. (18), (19). Pub. L. 110–140 added pars. (18) and (19).
2000—Par. (5)(A)(i). Pub. L. 106–554, §1(a)(9) [title IV, §402(a)], inserted before semicolon at end "regardless of the allocation of control during the investment period under any investment agreement between the business concern and the entity making the investment".
Par. (17). Pub. L. 106–554, §1(a)(9) [title IV, §402(b)], added par. (17).
1999—Par. (5). Pub. L. 106–9, §2(c)(1), designated existing provisions after "for purposes of this chapter" as subpar. (A), redesignated former subpars. (A) to (C) as cls. (i) to (iii), respectively, and added subpar. (B).
Par. (12)(A)(ii). Pub. L. 106–9, §2(c)(2), inserted before "; or": "except that, for purposes of this clause, if the business concern is not required by law to pay Federal income taxes at the enterprise level, but is required to pass income through to the shareholders, partners, beneficiaries, or other equitable owners of the business concern, the net income of the business concern shall be determined by allowing a deduction in an amount equal to the sum of—
"(I) if the business concern is not required by law to pay State (and local, if any) income taxes at the enterprise level, the net income (determined without regard to this clause), multiplied by the marginal State income tax rate (or by the combined State and local income tax rates, as applicable) that would have applied if the business concern were a corporation; and
"(II) the net income (so determined) less any deduction for State (and local) income taxes calculated under subclause (I), multiplied by the marginal Federal income tax rate that would have applied if the business concern were a corporation".
1997—Par. (9)(B)(iii). Pub. L. 105–135 added subcl. (I) and redesignated former subcls. (I) and (II) as (II) and (III), respectively.
1996—Par. (5). Pub. L. 104–208, §208(a)(1), inserted before semicolon at end ", except that, for purposes of this chapter, an investment by a venture capital firm, investment company (including a small business investment company) employee welfare benefit plan or pension plan, or trust, foundation, or endowment that is exempt from Federal income taxation—
"(A) shall not cause a business concern to be deemed not independently owned and operated;
"(B) shall be disregarded in determining whether a business concern satisfies size standards established pursuant to section 3(a)(2) of the Small Business Act; and
"(C) shall be disregarded in determining whether a small business concern is a smaller enterprise".
Par. (9). Pub. L. 104–208, §208(a)(2), amended par. (9) generally. Prior to amendment, par. (9) read as follows: "notwithstanding any other provision of law, the term 'private capital' means the private paid-in capital and paid-in surplus of a corporate licensee, or the private partnership capital of an unincorporate licensee, inclusive of (A) any funds invested in the licensee by a public or private pension fund, (B) any funds invested in the licensee by State or local government entities, to the extent that such investment does not exceed 33 percent of a licensee's total private capital and otherwise meets criteria established by the Administration, and (C) unfunded commitments from institutional investors that meet criteria established by the Administration, but it excludes any funds which are borrowed by the licensee from any source or which are obtained or derived, directly or indirectly, from any Federal source, including the Administration: Provided, That no unfunded commitment from an institutional investor may be used for the purpose of meeting the minimum amount of private capital required by this chapter or as the basis for the Administration to issue obligations to provide financing; and".
Pars. (10) to (16). Pub. L. 104–208, §208(a)(3), added pars. (10) to (16) and struck out former par. (10) which read as follows: "the term 'leverage' includes debentures purchased or guaranteed by the Administration, participating securities purchased or guaranteed by the Administration, or preferred securities issued by companies licensed under section 681(d) of this title and which have been purchased by the Administration."
1992—Pars. (9), (10). Pub. L. 102–366 added pars. (9) and (10).
1976—Par. (8). Pub. L. 94–305 added par. (8).
1972—Par. (3). Pub. L. 92–595 substituted "section 681" for "section 681(c)".
Par. (7). Pub. L. 92–595 substituted "section 681" for "section 681(c)".
1961—Par. (3). Pub. L. 87–341, §2(1), inserted "licensee" and substituted "company approved by the Administration to operate under the provisions of this chapter and issued a license as provided in section 681(c) of this title" for "small business investment company organized as provided in subchapter III of this chapter, including (except for purposes of sections 681 and 687(f) of this title) a State-chartered investment company which has obtained the approval of the Administrator to operate under the provisions of this chapter as provided in section 688 of this title and a company converted into a small business investment company under section 691 of this title".
Par. (7). Pub. L. 87–341, §2(2), added par. (7).
1960—Par. (4). Pub. L. 86–502 substituted definition of "State" for definition of "United States".
Statutory Notes and Related Subsidiaries
Effective Date of 2007 Amendment
Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under section 1824 of Title 2, The Congress.
Effective Date of 1997 Amendment
Amendment by Pub. L. 105–135 effective Oct. 1, 1997, see section 3 of Pub. L. 105–135, set out as a note under section 631 of this title.
Effect of Small Business Equity Enhancement Act of 1992 on Securities Laws
Nothing in amendment by Pub. L. 102–366 to be construed to affect applicability of securities laws or to otherwise supersede or limit jurisdiction of Securities and Exchange Commission, see section 418 of Pub. L. 102–366, set out as a note under section 661 of this title.