us-irs-announcements-irb-1997-29-pdf•Internal Revenue Bulletin 1997-29 (PDF rendition): IRS Announcements
Internal Revenue Bulletin 1997-29 (PDF rendition): IRS Announcements
us-irs-announcements-irb-1997-29-pdfInternal Revenue Bulletin 1997-29 (PDF rendition): IRS AnnouncementsGuidance
Preserve advance releases and the authoritative Internal Revenue Bulletin rendition; directory timestamps are file-publication metadata, not legal effective dates. HTML bulletins begin June 2003; earlier available issues require full PDF parsing. Whole bulletin rendition: numbered items are identified below; other legal material and publisher context remain included. This is not a new standalone advance release.
Internal Revenue bulletinbulletin Bulletin No. 1997–29 July 21, 1997 HIGHLIGHTS OF THIS ISSUE These synopses are intended only as aids to the reader in identifying the subject matter covered. They may not be relied upon as authoritative interpretations. INCOME TAX T.D. 8722, page 4. REG-104893–97, page 13. Temporary and proposed regulations under section 894 of the Code relate to eligibility for benefits under income tax treaties for payments to entities. The regulations set forth rules for determining whether U.S. source payments made to entities are eligible for treaty-reduced tax rates. A public hearing on the proposed regulations will be held on Septem- ber 24, 1997. EMPLOYEE PLANS Announcement 97–70, page 14. This announcement describes certain transition relief to the minimum distribution rules of section 401(a)(9)(C) of the Code as amended by section 1404 of the Small Business Job Protection Act of 1996. EXEMPT ORGANIZATIONS Announcement 97–72, page 15. A list is provided of organizations that no longer qualify as organizations to which contributions are deductible under section 170 of the Code. ADMINISTRATIVE Notice 97–42, page 12. This notice modifies the guidance set forth in Notice 97–18, 1997–10 I.R.B. 35, regarding the time for reporting certain transfers under section 1491 of the Code. Announcement 97–61, page 13. This announcement publicizes a Competent Authority agree- ment executed between the United States and France to resolve a double taxation issue. The announcement states the double taxation relief measures as provided under the agreement. Announcement 97–71, page 15. An updated edition of Publication 1542, Per Diem Rates, (revised May 1997), is now available. Finding Lists begin on page 19. Announcement of Disbarments and Suspensions begins on page 16. 2 July 21, 19971997-29␣ ␣ I.R.B. Mission of the Service The purpose of the Internal Revenue Service is to collect the proper amount of tax revenue at the least cost; serve the public by continually improving the quality of our prod- ucts and services; and perform in a manner warranting the highest degree of public confidence in our integrity, effi- ciency and fairness. Statement of Principles of Internal Revenue Tax Administration The function of the Internal Revenue Service is to ad- minister the Internal Revenue Code. Tax policy for raising revenue is determined by Congress. With this in mind, it is the duty of the Service to carry out that policy by correctly applying the laws en- acted by Congress; to determine the reasonable meaning of various Code provisions in light of the Congressional purpose in enacting them; and to perform this work in a fair and impartial manner, with neither a government nor a taxpayer point of view. At the heart of administration is interpretation of the Code. It is the responsibility of each person in the Service, charged with the duty of interpreting the law, to try to find the true meaning of the statutory provision and not to adopt a strained construction in the belief that he or she is “protecting the revenue.” The revenue is properly protected only when we as- certain and apply the true meaning of the statute. The Service also has the responsibility of applying and administering the law in a reasonable, practical manner. Issues should only be raised by ex- amining officers when they have merit, never arbi- trarily or for trading purposes. At the same time, t h e examining officer should never hesitate to raise a meritorious issue. It is also important that care be exercised not to raise an issue or to ask a court to adopt a position inconsistent with an established Service position. Administration should be both reasonable and vigor- ous. It should be conducted with as little delay as possible and with great courtesy and con- siderateness. It should never try to overreach, and should be reasonable within the bounds of law and sound administration. It should, however, be vigor- ous in requiring compliance with law and it should be relentless in its attack on unreal tax devices and fraud. 3 1997-29␣ ␣ I.R.B.July 21, 1997 The Internal Revenue Bulletin is the authoritative instru- ment of the Commissioner of Internal Revenue for an- nouncing official rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conventions, legislation, court deci- sions, and other items of general interest. It is published weekly and may be obtained from the Superintendent of Documents on a subscription basis. Bulletin contents of a permanent nature are consolidated semiannually into Cu- mulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all substantive rulings necessary to promote a uniform appli- cation of the tax laws, including all rulings that supersede, revoke, modify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively un- less otherwise indicated. Procedures relating solely to mat- ters of internal management are not published; however, statements of internal practices and procedures that affect the rights and duties of taxpayers are published. Revenue rulings represent the conclusions of the Service on the application of the law to the pivotal facts stated in the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service fied of- fices, identifying details and information of a confidential nature are deleted to prevent unwarranted invasions of privacy and to comply with statutory requirements. Rulings and procedures reported in the Bulletin do not have the force and effect of Treasury Department Regula- tions, but they may be used as precedents. Unpublished rulings will not be relied on, used, or cited as precedents by Service personnel in the disposition of other cases. In applying published rulings and procedures, the effect of subsequent legislation, regulations, court decisions, rul- ings, and procedures must be considered, and Service personnel and others concerned are cautioned against reaching the same conclusions in other cases unless the facts and circumstances are substantially the same. The Bulletin is divided into four parts as follows: Part I.—1986 Code. This part includes rulings and decisions based on provi- sions of the Internal Revenue Code of 1986. Part II.—Treaties and Tax Legislation. This part is divided into two subparts as follows: Subpart A, Tax Conventions, and Subpart B, Legislation and Related Committee Reports. Part III.—Administrative, Procedural, and Miscellaneous. To the extent practicable, pertinent cross references to these subjects are contained in the other Parts and Sub- parts. Also included in this part are Bank Secrecy Act Ad- ministrative Rulings. Bank Secrecy Act Administrative Rul- ings are issued by the Department of the Treasury’s Office of the Assistant Secretary (Enforcement). Part IV.—Items of General Interest. With the exception of the Notice of Proposed Rulemaking and the disbarment and suspension list included in this part, none of these announcements are consolidated in the Cumulative Bulletins. The first Bulletin for each month includes a cumulative index for the matters published during the preceding months. These monthly indexes are cumulated on a quarterly and semiannual basis, and are published in the first Bulletin of the succeeding quarterly and semi-annual period, respectively. The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. Introduction 4 July 21, 19971997-29␣ ␣ I.R.B. Section 894.—Income Affected by Treaty 26 CFR 1.894–1T: Income affected by treaty (temporary). T.D. 8722 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Guidance Regarding Claims for Certain Income Tax Convention Benefits AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Temporary regulations. SUMMARY: This document contains temporary regulations relating to eligibil- ity for benefits under income tax treaties for payments to entities. The regulations set forth rules for determining whether U.S. source payments made to entities, in- cluding entities that are fiscally transpar- ent in the United States and/or the appli- cable treaty jurisdiction, are eligible for treaty-reduced tax rates. The regulations affect the determination of tax treaty ben- efits with respect to U.S. source income of foreign persons. The text of these tempo- rary regulations also serves as the text of REG–104893–97. DATES: These regulations are effective July 2, 1997. These regulations apply to amounts paid on or after January 1, 1998. FOR FURTHER INFORMATION CON- TACT: Elizabeth Karzon, (202) 622– 3860 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background This document contains temporary regulations relating to the Income Tax Regulations (CFR part 1) under section 894 of the Internal Revenue Code (Code). Explanation of Provisions These regulations prescribe rules for de- termining whether U.S. source income paid to an entity is eligible for a reduced rate of U.S. tax under an income tax treaty. The regulations are designed principally to clarify the availability of treaty-reduced tax rates for a payment of U.S. source income to an entity that is treated as fiscally trans- parent, including a hybrid entity (i.e., an entity that is treated as fiscally transparent in either (but not both) the United States or the jurisdiction of residence of the person that seeks to claim treaty benefits). The regulations address only the treat- ment of U.S. source income that is not ef- fectively connected with the conduct of a U.S. trade or business. Treasury and the IRS may issue additional regulations ad- dressing the availability of other tax treaty benefits, such as the application of busi- ness profits provisions, with respect to in- come of fiscally transparent entities. Under the regulations, payments of U.S. source income to an entity that is treated as fiscally transparent for U.S. fed- eral income tax purposes are eligible for reduced tax rates under a tax treaty be- tween the United States and another juris- diction (the applicable treaty jurisdiction) if the entity itself is a resident of the ap- plicable treaty jurisdiction, or if, and only to the extent that, the interest holders of the entity are residents of the applicable treaty jurisdiction and the entity is treated as fiscally transparent for purposes of the tax laws of such jurisdiction. Accordingly, payments of U.S. source income to an entity that is treated as fis- cally transparent for U.S. federal income tax purposes but as non-fiscally transpar- ent for purposes of the tax laws of the ap- plicable treaty jurisdiction are not eligible for a treaty-reduced tax rate under the rel- evant treaty unless the entity itself is a resident of the applicable treaty jurisdic- tion. Conversely, under the regulations, a payment of U.S. source income to an en- tity that is treated as non-fiscally transpar- ent for U.S. federal income tax purposes (other than a domestic corporation) is eli- gible for a reduced tax rate under the rel- evant treaty if the entity itself is a resident of the applicable treaty jurisdiction or if, and only to the extent that, interest hold- ers of the entity are residents of the appli- cable treaty jurisdiction and the entity is treated as fiscally transparent for purposes of the tax laws of such jurisdiction. Under these temporary regulations, an entity is treated as fiscally transparent by a jurisdiction only if the jurisdiction re- quires interest holders in the entity to take into account separately their respective shares of the various items of income of the entity on a current basis and to deter- mine the character of such items as if such items were realized directly from the source from which realized by the entity (for purposes of the tax laws of the juris- diction). Accordingly, entities treated as fiscally transparent by a jurisdiction are entities subject in that jurisdiction to rules analogous to the U.S. rules applicable to entities that are treated as partnerships for U.S. federal income tax purposes. These regulations are consistent with U.S. tax treaty obligations and basic tax treaty principles. The regulations as ap- plied to hybrid entities are based on the principles discussed below. Treasury and the Service will continue to coordinate these issues with U.S. tax treaty partners in order to resolve any difficulty arising from the application of the principles set forth in these regulations. Problems Arising From Dual Classification The United States generally applies its tax rules to determine the classification of both domestic and foreign entities. When U.S. and foreign laws differ on classifica- tion principles, a hybrid entity may re- sult. If income is paid to a hybrid entity, the entity may be considered as deriving the income under U.S. tax principles (e.g., as an association taxable as a corporation under U.S. tax principles), but its interest holders, rather than the entity, may be considered to derive the income under foreign tax principles (e.g., as an entity equivalent to a U.S. partnership). This dual classification may give rise to inap- propriate and unintended results under tax treaties, such as double exemptions or double taxation, unless the tax treaties are interpreted so as to take into account the conflict of laws. To avoid inappropriate and unintended tax treaty results with respect to payments to hybrid entities, these regulations rely on the basic principle that income tax treaties are designed to relieve double taxation or excessive taxation. This objective is gener- ally achieved with provisions in treaties that limit the tax that a country may im- pose on income arising from sources Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 5 1997-29␣ ␣ I.R.B.July 21, 1997 within its borders to the extent that the in- come is derived by a resident of a jurisdic- tion with which the source country has an income tax treaty in effect (an applicable treaty jurisdiction). However, the agree- ment by the source country to cede part or all of its taxation rights to the treaty partner is predicated on a mutual understanding that the treaty partner is asserting tax juris- diction over the income. Stated simply, tax treaties contemplate that income relieved from taxation in the source country will be subject to tax in the treaty country. This principle is central to the interpretation of treaty provisions in determining the extent to which payments received by a hybrid entity are eligible for benefits under tax treaties. Some treaties have specific rules reflecting this principle that are helpful in deciding how the treaties should be applied in such cases. However, the lack of spe- cific rules in a treaty does not suggest that this principle does not apply under that treaty. In order to implement this principle, virtually all U.S. income tax treaties limit the eligibility for treaty benefits on the condition that the person deriving the in- come must be a resident of the applicable treaty country. Typical of this condition, for example, is Article 12 of the U.S.– German treaty, which provides that “Roy- alties derived and beneficially owned by a resident of a Contracting State shall be taxable only in that State.” Sometimes, the term paid to is used instead of the term derived by. However, those terms are used interchangeably and a different choice of words does not indicate that a different result is intended. Generally, a resident is defined as a person who is li- able to tax in the treaty country as a resi- dent of that country. See, for example, Article 4.1 of the U.S.–German tax con- vention, which provides that “the term ‘resident of a Contracting State’ means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of manage- ment, place of incorporation, or any other criterion of a similar nature ....” Limiting eligibility for treaty benefits to residents provides assurance to the source country that, when it limits its taxation rights on income arising from within its borders, it does so with the ex- pectation that the income derived by a resident of the treaty country is subject to tax in the residence country. Application of Principle to Hybrid Entities Generally Based on the typical residence provi- sions of U.S. tax treaties, if income is paid to an entity that is treated as fiscally trans- parent in the treaty country in which it is organized, the entity itself is not eligible for benefits under the applicable treaty be- cause it is not a resident of the treaty country (i.e., by virtue of not being liable to tax in that country). Whether the entity is a resident of the treaty country is deter- mined under the laws of that country and not under the laws of the source country. This observation is important if the entity is a hybrid (i.e., an entity that is treated as fiscally transparent in one jurisdiction and treated as non-fiscally transparent in an- other jurisdiction). If the entity, treated as fiscally transparent in the treaty country, is treated as a taxable entity in the source country, the entity is considered by the source country as being liable to tax. However, this determination under the source country tax laws does not render the entity a resident of the treaty country. In order for the entity to be a resident of the treaty country, it must be liable to tax in that country, as determined under the laws of that country. Where the entity is not eligible for treaty benefits (for lack of residence in the treaty country), there is a question as to whether the owners of the entity may be eligible for benefits under an applicable income tax treaty. As stated above, the guiding principle is that income is eligible for a rate reduction or an exemption in the source country if “derived by” or “paid to” a resident of that country. Where the entity is treated as fiscally transparent, the question is whether the income can be considered “derived by” or “paid to” the owner of the entity. If the entity is treated as fiscally trans- parent by all tax jurisdictions involved (i.e., the source country, the country where the entity is organized, and the country where the owners are resident), it is well established under U.S. income tax treaties that the entity is ignored and a look-through approach is intended, with the result that the entity’s owners are treated as the persons who derive the in- come. This result is consistent with the general principle that eligibility for treaty benefits is conditioned upon the income being subject to tax in the treaty country as the income of a resident of that coun- try. In fact, some treaties clarify this point. For example, Article 4.1(b) of the U.S.–German income tax convention pro- vides, like several other U.S. tax conven- tions, that “in the case of income derived or paid by a partnership, estate, or trust, this term [resident] applies only to the ex- tent that the income derived by such part- nership, estate, or trust is subject to tax in that State [the State other than the source State] as the income of a resident, either in its hands or in the hands of its partners or beneficiaries.” Further, even where no provisions are included, the Technical Ex- planation sometimes explains that the look-through rule applies without the need for a specific provision. See the U.S. Treasury Department’s Technical Ex- planation of U.S.–Japan Income Tax Con- vention signed March 8, 1971, Article 3 (Fiscal Domicile). Application of Principle to Reverse Hy- brid Entity If an entity is a “reverse” hybrid entity, meaning that it is treated as a taxable en- tity under the tax laws of the source coun- try but as a fiscally transparent entity in the applicable treaty country, a conflict arises because, under the source country’s tax laws, the entity’s owners are not treated as deriving the income. Yet, under the tax laws of the jurisdiction where the entity’s owners are resident, the owners are treated as deriving the income paid to the entity. Thus, the question is whether the source country’s laws or the laws of each owner’s jurisdiction of residence should govern the determination of who is the person deriving the income for tax treaty purposes. Making that determina- tion under the tax laws of the applicable treaty jurisdiction where the owners are resident leads to results consistent with the principle discussed earlier that the source country cedes its tax jurisdiction to the treaty partner based on the under- standing that the treaty partner asserts tax jurisdiction over the income by insuring that it is taxable in the hands of a resident. In this case, the entity’s owners are resi- dent in a treaty country that treats them as liable to tax on the items of income paid to the entity. On the other hand, applying the tax laws of the source country would lead to results inconsistent with that prin- ciple. In other words, tax benefits would 6 July 21, 19971997-29␣ ␣ I.R.B. be denied under the applicable treaty (be- cause, under the source country’s tax laws, the entity’s owners are not treated as deriving the income paid to the entity), even though the income arising in the source country is subject to tax in the hands of persons who are resident in the applicable treaty jurisdiction. Application of Principle to Regular Hybrid Entity The same principle applies to a “regu- lar” hybrid entity, i.e., an entity that is treated as fiscally transparent in the source country and as a non-fiscally trans- parent entity in the applicable treaty juris- diction. If the entity is organized in a treaty jurisdiction, the applicable treaty with that country generally would treat the entity as a resident. Therefore, under that treaty, the entity should be eligible for treaty benefits as an entity deriving the in- come as a resident of the treaty jurisdic- tion. On the other hand, the entity’s own- ers who are resident in that jurisdiction (or in any other jurisdiction that treats the entity as non-fiscally transparent) should not be eligible for treaty benefits under that treaty (or a treaty with the country where they are resident that treats the en- tity as non-fiscally transparent). This re- sult should occur irrespective of the fact that the source country considers that the taxpayers with respect to the income are the entity’s owners and not the entity (by virtue of treating the entity as fiscally transparent under its own tax laws). Again, applying the laws of the applicable treaty jurisdiction to determine whether the entity or its owners are deriving the income as residents of that country leads to results consistent with the basic prin- ciple that the source country cedes its tax jurisdiction over income to the extent the income is subject to tax in the hands of a resident of the applicable treaty country. Applying the tax laws of the source country to determine the person deriving the income for treaty purposes would not only be inconsistent with the basic prin- ciple that income should be treated as de- rived by the person in the treaty country who is liable to tax on that income, it also potentially leads to tax avoidance under tax conventions, including an inappropri- ate double exemption. For example, if the entity does not fall within the taxing juris- diction of the applicable treaty jurisdic- tion (e.g., because the entity is organized in a third country or as a fiscally transpar- ent entity in the source country), the in- come could be eligible for a treaty-re- duced tax rate in the source country and yet not be subject to tax in the jurisdiction where the owners are resident. In such a case, the owners may eventu- ally be taxed on the income when the en- tity makes a distribution of the income de- rived from the source country. The Treasury and IRS believe that the poten- tial for later taxation should not affect the results under the treaty for two reasons: first, the interposition of a hybrid entity between the income and the owner of the entity allows the taxation event in the treaty jurisdiction to be deferred, perhaps indefinitely; second, the income, when distributed or deemed distributed (for ex- ample, pursuant to anti-deferral rules of the treaty jurisdiction), may be trans- formed. In other words, the income de- rived by the partner will be treated in the partner’s residence country as a distribu- tion (or deemed distribution) of profits from the entity and not as the type of in- come derived by the entity from the source country. This disparity in treat- ment may lead to a double exemption if, for example, the dividend distribution is exempt from tax in the country where the entity’s owners reside due to double tax relief or a corporate integration regime that grants preferential tax treatment to corporate distributions. Interpreting con- ventions in a way that allows such a double exemption would not be consistent with the primary goal of treaties to relieve double or excessive taxation. This is es- pecially true where, as is the case here, an alternative interpretation exists that would produce results consistent with basic tax convention principles. Certain taxpayers have expressed the view that this analysis of the treatment of payments to hybrid entities under tax trea- ties is inconsistent with the treatment of so-called hybrid securities that are treated differently under the tax laws of the source country and the relevant treaty ju- risdiction (e.g., an instrument that is treated as a debt instrument in the source country but as an equity interest in the rel- evant treaty jurisdiction). In certain cases, the use of hybrid securities can lead to double exemptions, analogous to the double exemptions possible with respect to “regular” hybrid entities, based on the availability of an exemption from tax in the relevant treaty jurisdiction. Treasury and the IRS recognize that hybrid securi- ties can produce inappropriate and unin- tended results under income tax treaties. Although the residence concept of tax treaties, which incorporates the basic “subject to tax” principle, generally is sat- isfied with respect to payments on a hy- brid security for the reasons discussed above, Treasury and the IRS are consider- ing whether inappropriate and unintended tax treaty consequences, including both double exemptions and double taxation, can arise with respect to hybrid securities and, if so, what alternative avenues exist for addressing them. The hybrid entity analysis applies re- gardless of where the entity is organized and where the owners are resident. One example involves an entity organized in one country and owned by persons resid- ing in a third country. If the third country and the source country treat the entity as fiscally transparent, both the source coun- try and the third country can ignore the entity for purposes of granting treaty ben- efits under the third country’s convention with the source country. In such a case, the entity’s owners resident in the third country are treated as deriving the income received by the entity, under both the source country tax laws and the tax laws of the third country. In a three-country situation, there may also be simultaneous application of two treaties to the same flow of income: the treaty with the coun- try where the entity is organized, and the treaty with the country where the entity’s owners are resident. The analysis applicable to fiscally transparent entities does not depend on whether the entity has multiple owners or a single owner. Accordingly, the analysis applies to a wholly-owned entity that is disregarded for federal tax purposes as an entity separate from its owner. Application of Principle to Entity Orga- nized in Source Country The same analysis generally applies to entities organized in the source country. If both the source country and the treaty jurisdiction where the entity’s owners are resident treat the entity as fiscally trans- parent, then the entity is ignored and the eligibility for treaty benefits is tested at the owners’ level. If the entity, however, is treated as non-fiscally transparent in the 7 1997-29␣ ␣ I.R.B.July 21, 1997 treaty jurisdiction, then the income is not treated by the treaty jurisdiction as being derived by the owners. Therefore, the owners are not eligible for benefits under the treaty since they are not deriving the income for purposes of the applicable treaty. Taxpayers may argue that treaty ben- efits should be allowed to the owners re- siding in the treaty country because, viewed from the source country’s point of view, the owners are deriving the income from the source country and are resident in the treaty country. While the provi- sions in current treaties do not explicitly provide for this situation, the situation raises exactly the same issues as in the cases discussed above. For this purpose, it is immaterial that the entity is organized in the country of the owner, in a third country, or in the source country. The analysis does not apply, however, if the entity is a reverse hybrid organized in the United States because, in such a case, the United States treats the entity as a corporate entity, liable to tax in the United States at the entity level. The right of the United States to tax a domestic cor- poration is established under the “savings clause” of all U.S. tax treaties which pre- serves the right of the United States to tax its residents and citizens under its domes- tic law. Distributions from a domestic corporation that is a reverse hybrid are also subject to U.S. tax in the hands of the foreign owners who are treated as share- holders for U.S. tax purposes. Beneficial Ownership The principles relied upon in these tem- porary regulations are consistent with the proposed withholding tax regulations is- sued under §§1.1441–1(c)(6)(ii)(B) and 1.1441–6(b)(4) regarding claims of treaty- reduced withholding rates for U.S. source payments through foreign entities. The temporary regulations, however, do not utilize the same terminology as the pro- posed withholding tax regulations. The proposed withholding tax regula- tions condition eligibility for treaty- based withholding rates for payments to an entity on a determination of “benefi- cial owner” status for the entity or the in- terest holders of the entity pursuant to the laws of the applicable treaty jurisdic- tion. Accordingly, under the proposed withholding tax regulations, the term beneficial owner functions as a surrogate for the principle that a person is eligible for tax treaty benefits with respect to a payment received by an entity only if the person is a resident with respect to such payment. The term beneficial owner as used in the proposed withholding tax regulations may be confusing because this term has other meaning in the tax treaty context. Accordingly, the temporary regulations do not utilize the term beneficial owner in the same manner as the proposed with- holding regulations. Rather, they condi- tion eligibility for treaty-reduced tax rates for income paid to an entity on a determi- nation that the income is “treated as de- rived by a resident” of the applicable treaty jurisdiction. Like the determination of beneficial owner status required in the proposed withholding tax regulations, the determination of whether a payment to an entity is “treated as derived by a resident” is determined under the principles in ef- fect under the laws of the applicable treaty jurisdiction. Treasury and the Ser- vice intend to conform the final withhold- ing tax regulations to the temporary regu- lations. The temporary regulations reflect the fact that the concept of beneficial owner- ship is an important separate condition for claiming tax treaty benefits. In order to address difficulties where the recipient acts as a “nominee” or “conduit” for an- other person or in other situations involv- ing a disconnect between legal and eco- nomic ownership, most income tax treaties require that the resident be a ben- eficial owner of the income. This require- ment is entirely separate from the benefi- cial ownership requirement with respect to U.S. source payments to foreign enti- ties reflected in the proposed withholding tax regulations and the residence require- ment with respect to U.S. source pay- ments to all entities reflected in these tem- porary regulations. As used in tax treaties, the term beneficial owner is meant to address “conduit”, “nominee” and comparable situations in which the person receives the payment in form (and may even be taxed on that income in the jurisdiction in which it resides), but is nevertheless not treated as beneficially owning the income for purposes of a par- ticular treaty because, under the beneficial owner rules of the source country, the in- come is deemed to belong to another per- son who is determined to have a stronger economic nexus to the income. See, for example, section 7701(l) and §§1.7701- (l)–1(b) and 1.881–3. Thus, the tempo- rary regulations utilize the term beneficial owner in a manner consistent with the treaty approach. Mutual Agreement Treasury and IRS intend that the prin- ciples of the regulations should be applied in a reciprocal manner by U.S. tax treaty partners. For this reason, the regulations include a special rule that provides that, irrespective of any contrary rules in the regulations, a reduced rate under a tax treaty for a payment of U.S. source in- come will not be available to the extent that the applicable treaty partner does not grant a reduced rate under the tax treaty to a U.S. resident in similar circumstances, as evidenced by a mutual agreement be- tween the relevant competent authorities or a public notice of the treaty partner. Denial of benefits under this provision would be effective on a prospective basis only. Effective Date The temporary regulations apply on a prospective basis only to amounts paid on or after January 1, 1998. Withholding agents should consider the effect of these regulations on their withholding obliga- tions, including the need to obtain a new withholding certificate to confirm claims of treaty benefits for payments made on or after the effective date. Treasury and the IRS recognize that the applicable prin- ciples for determining eligibility of re- duced treaty rates for income paid to hy- brid entities may have been uncertain in the past. Accordingly, the IRS does not intend to challenge any claim of treaty benefits for payments to hybrid entities made before the effective date of these regulations on the basis that the claim was based on principles inconsistent with those upon which these regulations are based. Special Analyses It has been determined that these tem- porary regulations are not a significant regulatory action as defined in EO 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Pro- 8 July 21, 19971997-29␣ ␣ I.R.B. cedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because these regulations do not impose on small entities a collection of information re- quirement, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analy- sis is not required. Because of rapidly in- creasing use of hybrid entities for cross- border transactions, immediate guidance is needed on rules for determining whether U.S. source payments made to entities, including entities that are fiscally transparent in the United States and/or the applicable treaty jurisdiction, are eligible for treaty-reduced tax rates. Therefore, good cause is found to dispense with the notice requirement of section 553(b) of the Administrative Procedure Act. Pursu- ant to section 7805(f) of the Internal Rev- enue Code, these regulations will be sub- mitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. * * * * * Adoption of Amendments to the Regula- tions Accordingly, CFR 26 part 1 is amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. §1.894–1T is added to read as follows: §1.894–1T: Income affected by treaty (temporary). (a) through (c) [Reserved]. For further guidance, see §1.894–1(a) through (c). (d) Determination of tax on income paid to entities—(1) In general. The tax imposed by sections 871(a), 881(a), 1461, and 4948(a) on a payment received by an entity organized in any country (including the United States) shall be eligible for re- duction under the terms of an income tax treaty to which the United States is a party if such payment is treated as derived by a resident of an applicable treaty jurisdic- tion, such resident is a beneficial owner of the payment, and all other applicable re- quirements for benefits under the treaty are satisfied. A payment received by an entity is treated as derived by a resident of an applicable treaty jurisdiction only to the extent the payment is subject to tax in the hands of a resident of such jurisdic- tion. For this purpose, a payment re- ceived by an entity that is treated as fis- cally transparent by the applicable treaty jurisdiction shall be considered a payment subject to tax in thehands of a resident of the jurisdiction only to the extent that the interest holders in the entity are residents of the jurisdiction. For purposes of the preceding sentence, interest holders shall not include any direct or indirect interest holders that are themselves treated as fis- cally transparent entities by the applicable treaty jurisdiction. A payment received by an entity that is not treated as fiscally transparent by the applicable treaty juris- diction shall be considered a payment subject to tax in the hands of a resident of such jurisdiction only if the entity is itself a resident of that jurisdiction. (2) Application of beneficial ownership requirement in respect of certain pay- ments received by entities—(i) Entities treated as fiscally transparent for U.S. tax purposes. An entity that is treated as fis- cally transparent under the laws of the United States and that is resident in an ap- plicable treaty jurisdiction shall be treated as the beneficial owner of a payment if the entity would be treated as the benefi- cial owner if it were treated as nonfiscally transparent by the United States. (ii) Entity’s owners as beneficial own- ers—(A) A resident of an applicable treaty jurisdiction that derives a payment received by an entity that is fiscally trans- parent under the laws of the applicable tax jurisdiction shall be treated as the benefi- cial owner of the payment unless— (1) Such resident would not have been treated as the beneficial owner of the pay- ment had such payment been received di- rectly by the resident; or (2) The entity receiving the payment is not treated as a beneficial owner of the payment. (B) For example, persons residing in treaty Country X and treated under the laws of Country X as interest holders in a fiscally transparent entity created under the laws of Country Y are treated as the beneficial owners of the payments re- ceived by the entity from sources within the United States unless the interest hold- ers would not have been treated as benefi- cial owners had they received the pay- ment directly (e.g., the partners act as nominees or conduits for other persons). However, if the entity itself is acting as a nominee or conduit for another person and, therefore, is not itself a beneficial owner, then none of the interest holders can be treated as beneficial owners, even if the interest holders own their interests in the entity as beneficial owners. For this purpose, the determination of whether a person is a beneficial owner of a pay- ment shall be made under U.S. tax laws. (3) Application to certain domestic en- tities. Notwithstanding paragraph (d)(1) of this section, an income tax treaty may not apply to reduce the amount of tax on income received by an entity that is treated as a domestic corporation for U.S. tax purposes. Therefore, neither the do- mestic corporation nor its shareholders are entitled to the benefits of a reduction of U.S. income tax on income received from U.S. sources by the corporation. (4) Definitions—(i) Entity. For pur- poses of this paragraph (d), the term entity shall mean any person that is treated by the United States or the applicable treaty jurisdiction as other than an individual. (ii) Fiscally transparent. For purposes of this paragraph (d), an entity is treated as fiscally transparent by a jurisdiction to the extent the jurisdiction requires interest holders in the entity to take into account separately on a current basis their respec- tive shares of the items of income paid to the entity and to determine the character of such items as if such items were real- ized directly from the source from which realized by the entity (for purposes of the tax laws of the jurisdiction). Entities that are fiscally transparent for U.S. federal in- come tax purposes include partnerships, common trust funds described under sec- tion 584, simple trusts, grantor trusts, as well as certain other entities (including entities that have a single interest holder) that are treated as partnerships or as disre- garded entities for U.S. federal income tax purposes. (iii) Applicable treaty jurisdiction. The term applicable treaty jurisdiction means the jurisdiction whose income tax treaty with the United States is invoked for purposes of reducing the rate of tax imposed under section 871(a), 881(a), 1461, and 4948(a). (iv) Resident. The term resident shall have the meaning assigned to such term in the applicable income tax treaty. (5) Application to all income tax trea- ties. Unless otherwise explicitly agreed 9 1997-29␣ ␣ I.R.B.July 21, 1997 upon in the text of an income tax treaty, the rules contained in this paragraph (d) shall apply in respect of all income tax treaties to which the United States is a party. How- ever, a reduced rate under a tax treaty for a payment of U.S. source income will not be available irrespective of the provisions in this paragraph (d) to the extent that the ap- plicable treaty partner would not grant a re- duced rate under the tax treaty to a U.S. resident in similar circumstances, as evi- denced by a mutual agreement between the relevant competent authorities or by a pub- lic notice of the treaty partner. The Internal Revenue Service shall announce the terms of any such mutual agreement or treaty partner’s position. Any denial of tax treaty benefits as a consequence of such a mutual agreement or treaty partner’s position shall affect only U.S. source payments made af- ter announcement of the terms of the agree- ment or of the position. (6) Examples. This paragraph (d) is il- lustrated by the following examples. Un- less stated otherwise, each example as- sumes that all conditions for claiming a treaty-reduced tax rate under a U.S. in- come tax treaty with respect to a payment of U.S. source income are satisfied (other than the condition that the income is treated as derived by a resident of the ap- plicable treaty jurisdiction), including the beneficial ownership requirement and all requirements relating to applicable limita- tion on benefits provisions. The examples are as follows: Example 1. (i) Facts. Entity A is a business or- ganization formed under the laws of Country X that has an income tax treaty with the United States. Un- der the laws of Country X, A is liable to tax at the entity level. A is treated as a partnership for U.S. in- come tax purposes and receives royalties from U.S. sources that are not effectively connected with the conduct of a trade or business in the United States. Some of A’s partners are resident in Country X and the other partners are resident in Country Y. Coun- try Y has no income tax treaty in effect with the United States. Article 12 of the U.S.–X tax treaty provides that “royalties derived from sources within a Contracting State by a resident of the other Con- tracting State shall not exceed 5 percent of the gross amount thereof...”. Article 4.1 of the treaty provides that for purposes of the treaty, “a ‘resident’ of a Con- tracting State means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management, place of incorporation, or any other criterion of a similar na- ture...”. Article 4.2 of the treaty provides that in the case of income “derived or paid by a partnership...”, the term resident applies only to the extent that the income derived by such partnership is subject to tax in that State as the income of a resident, either in its hands or in the hands of its partners. (ii) Analysis. Under the U.S.–X income tax treaty, A is a resident of Country X within the mean- ing of Article 4.1 of the treaty. Also, as a resident of Country X taxable on the U.S. source royalty under the tax laws of Country X, A meets the condition un- der Article 12 of the treaty that it derive the income from sources within the United States. Accordingly, the U.S. source royalty income is treated as derived by a resident of X. Further, A is a beneficial owner of the royalty income, as determined under para- graph (d)(2)(i) of this section. The fact that A’s in- terest holders are also beneficial owners of the roy- alty income under U.S. tax principles (as partners of A) does not preclude A from qualifying as a benefi- cial owner for purposes of the treaty. In addition, A may claim benefits under the U.S.–X income tax treaty even though some of its interest holders do not reside in X or reside in a country that does not have an income tax treaty in effect with the United States. Example 2. (i) Facts. The facts are the same as under Example 1 except that Article 12 of the U.S.– X income tax treaty provides that royalties “paid” to a resident of a treaty country from sources within the other may be taxed in both countries but the tax is limited to 10 percent of the gross amount of the roy- alties in the source country. Further the U.S.-X in- come tax treaty includes no provision relating to in- come paid or derived through a partnership. (ii) Analysis. As in Example 1, A is entitled to claim the benefit of the U.S.-X income tax treaty with respect to the U.S. source royalty income paid to A. The term paid and the term derived are used interchangeably in U.S. income tax treaties. Accord- ingly, the U.S. source royalty income is treated as derived by a resident of X. It is irrelevant that the U.S.–X treaty does not include a provision relating to income paid or derived through a partnership. Example 3. (i) Facts. The facts are the same as under Example 2, except that Country Y has an in- come tax treaty in effect with the United States. Ar- ticle 12 of the U.S.–Y income tax treaty reduces the rate on U.S. source royalty income to zero if the in- come is paid to a resident of Country Y who benefi- cially owns the income. Article 4.1 of the U.S.–Y treaty provides that for purposes of the treaty, “a ‘resident’ of a Contracting State means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management, place of incorporation, or any other criterion of a similar nature...”. The U.S.–Y treaty does not include a provision relating to income paid or derived through a partnership. Under the laws of Country Y, A is treated as fiscally transparent entity. Thus, A’s partner, T, a corporation organized in Country Y is required to include in income on a cur- rent basis its allocable share of A’s income. T is a beneficial owner of the income paid to A, as deter- mined under paragraph (d)(2)(ii) of this section. (ii) Analysis. As in Example 2, A is entitled to claim the benefit of the U.S.–X income tax treaty with respect to the U.S. source royalty income paid to A. However, T is also entitled to claim the benefit of the exemption under the U.S.–Y treaty for its allo- cable share of the U.S. source royalty income. T meets the conditions of Article 12 because it is a resident of Country Y within the meaning of Article 4.1 of the treaty. Also, as a resident of Country Y taxable on the U.S. source royalty under the tax laws of Country Y, it meets the condition under Article 12 of the treaty that income from sources within the United States be paid to a resident. Accordingly, T’s allocable share of the U.S. source royalty income is treated as derived by a resident of Y. It is irrelevant that the U.S.–Y treaty does not include a provision relating to income paid or derived through a partner- ship. Example 4. (i) Facts. Entity A is a business or- ganization organized under the laws of Country V that has no income tax treaty with the United States. A is treated as a partnership for U.S. tax purposes and receives royalty income from U.S. sources that is not effectively connected with the conduct of a trade or business in the United States. G, one of A’s interest holders, is a corporation organized under the laws of Country X. X treats A as an entity taxable at the entity level and not as a fiscally transparent en- tity. Therefore, G is not required to include in in- come on a current basis its share of A’s income. In- stead, G is taxed in X on its share of A’s profits when distributed by A and such distribution is taxed to G as a dividend. H, A’s other interest holder, is a cor- poration organized in Country Y. Y treats A as a fis- cally transparent entity and requires H to include in income on a current basis its allocable share of A’s income. Both X and Y have an income tax treaty in effect with the United States. Article 12 of the U.S.– X income tax treaty provides that royalties paid to a resident of a treaty country from sources within the other may be taxed in both countries but the tax is limited to 5 percent of the gross amount of the royal- ties in the source country. Article 4.1 of the U.S.–X treaty provides that for purposes of the treaty, a “‘resident’ of a Contracting State means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management, place of incorporation, or any other criterion of a similar nature...”. The U.S.–X treaty does not include a provision relating to income paid or derived through a partnership. Article 12 of the U.S.–Y treaty provides that “royalties derived and beneficially owned by a resident of a Contracting State shall be taxable only in that State.” Article 4.1 of the U.S.–Y treaty provides that, for purposes of the treaty, a “‘resident’ of a Contracting State means any person who, under the laws of that State, is li- able to tax therein by reason of his domicile, resi- dence, place of management, place of incorporation, or any other criterion of a similar nature...”. Article 4.2 of the U.S.–Y treaty provides that in the case of income “derived or paid by a partnership...”, the term resident applies only to the extent that the in- come derived by such partnership is subject to tax in that State as the income of a resident, either, in its hands or in the hands of its partners. (ii) Analysis. A may not claim the benefit of any income tax treaty since it is not a resident of a coun- try with which the United States has such a treaty. This result occurs regardless of how A is treated for U.S. tax purposes or for purposes of the tax laws of Country V. G may not claim the benefits of Article 12 of the U.S.–X treaty. Under the tax laws of X, G’s share of the U.S. source royalty income paid to A is not treated as derived by a resident of X since, under X’s tax laws, A, rather than G, is required to account for income received by A. This result oc- curs even if A distributes the royalty amount imme- diately after receiving it because, in such a case, G would be taxable on an amount treated as a profit distribution from A and not on royalty income re- ceived from sources within the United States. The fact that, for U.S. tax purposes, G is treated as the taxpayer for its allocable share of A’s income is not relevant for purposes of determining whether, for purposes of Article 12 of the U.S.–X income tax treaty, G’s share of the income paid to A is treated as derived by a resident of X. For this purpose, the laws of Country X govern the determination of whether G meets this condition. On the other hand, H may claim an exemption from U.S. tax on its share of the royalty income received by A under Ar- ticle 12 of the U.S.–Y treaty because, under the tax laws of Y, H rather than A, is required to account for income received by A. Accordingly, H’s share of the U.S. source royalty income paid to A is treated as derived by a resident of Y. Example 5. The facts are the same as in Example 4, except that A is a business organization formed under the laws of a U.S. State as a limited liability 10 July 21, 19971997-29␣ ␣ I.R.B. company. The consequences are the same as de- scribed in Example 4. G is not eligible for benefits under Article 12 of the U.S.–X income tax treaty since, under X’s tax laws, A, rather than G, is re- quired to account for income received by A. Under section 881(a), G is liable for U.S. income tax on its allocable share of A’s U.S. source royalty income at a 30 percent rate and A must withhold 30 percent from G’s allocable share under section 1442. Simi- larly, H may claim an exemption from U.S. tax on its share of the royalty income received by A under Ar- ticle 12 of the U.S.–Y treaty because, under the tax laws of Y, H rather than A, is required to account for income received by A. Example 6. The facts are the same as in Example 4, except that A is a so-called dual organized entity. In addition to being organized under the laws of Country V, A has also been organized under the laws of the United States pursuant to the State Z domesti- cation statute. Accordingly, both Country V and the United States regard entity A as a domestic entity ex- isting only in that jurisdiction. Further, Country X and Country Y regard A as a Country V entity. A is treated as a partnership for U.S. tax purposes. The fact that A is a dual organized entity that is regarded differently in Countries X or Y and the United States does not impact the relevant tax treaty analysis. As in Example 4, A may not claim the benefit of any in- come tax treaty since it is not a resident of a country with which the United States has such a treaty. Similarly, G is not eligible for benefits under Article 12 of the U.S.–X income tax treaty since, under X’s tax laws, A, rather than G, is required to account for income received by A. Under section 881(a), G is li- able for U.S. income tax on its allocable share of A’s U.S. source royalty income at a 30 percent rate. Be- cause A is treated as a U.S. partnership for U.S. tax purposes, A must withhold 30 percent from G’s allo- cable share under section 1442. H may claim an ex- emption from U.S. tax on its share of the royalty in- come received by A under Article 12 of the U.S.–Y income tax treaty because, under the tax laws of Y, H rather than A, is required to account for the in- come received by A. Example 7. The facts are the same as in Example 5, except that A distributes all U.S. source royalty in- come to its interest holders immediately following A’s receipt of such income. The consequences are the same as described in Example 5. G remains in- eligible for benefits under Article 12 of the U.S.–X income tax treaty since, under X’s tax laws, A, rather than G, is required to account for the royalty income received by A. The fact that A distributes income on a current basis to G is irrelevant even if Country X taxes G on such distributions on a current basis. Country X regards such distributions to G as a distri- bution of profits from A to G rather than an item of U.S. source royalty income of G. H remains eligible for benefits under Article 12 of the U.S.–Y income tax treaty with respect to H’s allocable share of the U.S. source royalty treatment received by A. Example 8. The facts are the same as in Example 5, except that Country X pursuant to a Country X anti-deferral regime requires that G account for on a current basis as a deemed distribution G’s pro rata share of A’s net passive income. For purposes of the anti-deferral regime, the U.S. source royalty income of G is regarded as passive income. The conse- quences are the same as described in Example 5. G remains ineligible for benefits under Article 12 of the U.S.–X income tax treaty because, under X’s tax laws, A, rather than G, is required to account for the royalty income received by A. The fact that G re- ceives a current deemed distribution of net passive income is irrelevant even if Country X taxes G on such deemed distributions on a current basis. Coun- try X regards such deemed distributions to G as a distribution of profits from A to G rather than an al- location to G of G’s share of A’s U.S. source royalty income. H remains eligible for benefits under Ar- ticle 12 of the U.S.–Y income tax treaty with respect to H’s allocable share of the U.S. source royalty treatment received by A. Example 9. (i) Facts. Entity A is a business or- ganization formed under the laws of Country X that has an income tax treaty with the United States. A has made a valid election under §301.7701–3(c) of this chapter to be treated as a corporation for U.S. tax purposes and receives royalty income from sources within the United States that is not effec- tively connected with the conduct of a trade or busi- ness in the United States. G, A’s sole shareholder, is a corporation organized under the laws of Country X. Under the tax laws of X, A is treated as a fiscally transparent entity and, therefore, G is required to in- clude in income on a current basis its share of A’s in- come. Article 12 of the U.S.–X tax treaty provides that “royalties derived from sources within a Con- tracting State by a resident of the other Contracting State shall not exceed 5 percent of the gross amount thereof...”. Article 4.1 of the treaty provides that for purposes of the treaty, a “‘resident’ of a Contracting State means any person who, under the laws of that State, is liable to tax therein by reason of his domi- cile, residence, place of management, place of incor- poration, or any other criterion of a similar na- ture...”. Article 4.2 of the treaty provides that in the case of income “derived or paid by a partnership...”, the term resident applies only to the extent that the income derived by such partnership is subject to tax in that State as the income of a resident, either, in its hands or in the hands of its partners. (ii) Analysis. A does not qualify for benefits un- der the U.S.-X income tax treaty because A is treated as a fiscally transparent entity under the tax laws of X and thus is not a resident of X for purposes of the treaty. G, on the other hand, qualifies for benefits under the U.S.–X treaty with respect to the U.S. source royalty income received by A because, under the tax laws of X, G is required to account for the in- come received by A on a current basis. This result applies even though, for U.S. tax purposes, A is treated as a corporate entity. Accordingly, the U.S. royalty income paid to A is treated as derived by G, a resident of X, as determined under the tax laws of X. Based on G’s qualification for treaty benefits with respect to the U.S. source royalty income, A, as the taxpayer under U.S. tax laws, may claim that the income that it receives for U.S. tax purposes is eli- gible for benefit under the U.S.–X treaty. Example 10. The facts are the same as in Ex- ample 9, except that A is a corporation organized un- der the laws of a U.S. State and is, therefore, a do- mestic corporation. A may not claim under the U.S.–X income tax treaty a reduction of the rate of U.S. tax otherwise imposed on its income under sec- tion 11. A reduced rate of tax is unavailable under the U.S.–X treaty based upon the savings clause in Article 1 of the U.S.–X treaty. Thus, A remains fully taxable under U.S. tax laws as a domestic corpora- tion. Example 11. (i) Facts. Entity A is a business or- ganization organized under the laws of Country V that has no income tax treaty with the United States. A is treated as a partnership for U.S. tax purposes and receives royalty income from U.S. sources that is not effectively connected with the conduct of a trade or business in the United States. A is directly owned by H and J. J is a corporation organized in Country Z which treats A as fiscally transparent and J as an entity taxable at the entity level. Accord- ingly, Country Z requires J to include in income on a current basis J’s share of A’s U.S. source royalty in- come. H, A’s other direct interest holder, is a corpo- ration organized in Country Y. H, in turn is owned by E and F, both of which are entities organized in Country X. E and F are each wholly owned by C which is a corporation organized in Country V. Y treats both A and H as fiscally transparent entities. X treats A, H, and E as fiscally transparent entities. X treats F as an entity taxable at the entity level. Ac- cordingly, X requires F to include in income on a current basis F’s indirect share of A’s U.S. source royalty income. H and J are treated as corporations for U.S. federal income tax purposes while E, F, and C are treated as partnerships for U.S. federal tax pur- poses. X, Y and Z each have in effect an income tax treaty with the United States. Article 12 of the U.S.- X and the U.S.–Z income tax treaty provides that royalties paid to a resident of a treaty country from sources within the other may be taxed in both coun- tries but the tax is limited to 5 percent of the gross amount of the royalties in the source country. Ar- ticle 4.1 of the U.S.–X and the U.S.–Z treaty pro- vides that for purposes of the treaty, a “‘resident’ of a Contracting State means any person who, under the laws of that State, is liable to tax therein by rea- son of his domicile, residence, place of management, place of incorporation, or any other criterion of a similar nature...”. Article 4.2 of the U.S.–X and the U.S.-Z treaty provides that in the case of income “derived or paid by a partnership...”, the term resi- dent applies only to the extent that the income de- rived by such partnership is subject to tax in that State as the income of a resident, either in its hands or in the hands of its partners. Article 12 of the U.S.–Y treaty provides that “royalties derived and beneficially owned by a resident of a Contracting State shall be taxable only in that State.” Article 4.1 of the U.S.-Y treaty provides that, for purposes of the treaty, a “‘resident’ of a Contracting State means any person who, under the laws of that State, is li- able to tax therein by reason of his domicile, resi- dence, place of management, place of incorporation, or any other criterion of a similar nature...”. The U.S.-Y treaty does not include a provision relating to income paid or derived through a partnership. (ii) Analysis. A may not claim, based on its own status, the benefit of any income tax treaty since it is not a resident of a country with which the United States has such a treaty. This result occurs regard- less of how A is treated for U.S. tax purposes or for purposes of the tax laws of Country V. H may not claim the benefits of any treaty, including the ben- efits of Article 12 of the U.S.–Y treaty, because H does not qualify as a resident of Y or any other treaty jurisdiction. Similarly, neither E nor C may claim the benefits of any income tax treaty, since neither entity qualifies as a resident of X or any other treaty jurisdiction. F, however, may claim the benefit of Article 12 of the U.S.–X treaty with respect to F’s indirect share of the U.S. source royalty income re- ceived by A. Such income is treated as derived by F, a resident of X, because X qualifies as a resident of X and, under the tax laws of X, F is the first entity in the A, H, F chain that is not itself treated as fiscally transparent in X. J may claim the benefits of Article 12 of the U.S.–Z treaty with respect to J’s indirect share of the U.S. source royalty income paid to A be- cause, under the tax laws of Z, J rather than A, is re- quired to account for income received by A. Ac- cordingly, J’s share of the U.S. source royalty income paid to A is treated as derived by a resident of Z. As illustrated in this example, the U.S. federal income tax treatment of A, J, H, E, F and C is irrel- evant for purposes of determining the extent to which U.S. source royalty income paid to A is eli- gible for treaty-reduced tax rates under the U.S. in- come tax treaty with X, Y or Z. Example 12. (i) Facts. Entity A is a business organization formed under the laws of Country X that has an income tax treaty in effect with the United States. A owns all of the stock of a U.S. corporation B. Under the tax laws of X, A is sub- 11 1997-29␣ ␣ I.R.B.July 21, 1997 ject to tax at the entity level. For U.S. tax pur- poses, A is treated as a branch of its single owner, G. G is a corporation organized under the laws of X. A receives dividends from B that are from U.S. sources and are not effectively connected with the conduct of a trade or business in the United States. Article 10 of the U.S.–X tax treaty provides that “dividends derived from sources within a Contract- ing State by a resident of the other Contracting State shall not exceed 5 percent of the gross amount thereof...”. Article 4.1 of the treaty pro- vides that for purposes of the treaty, a “‘resident’ of a Contracting State means any person who, under the laws of that State, is liable to tax therein by rea- son of his domicile, residence, place of manage- ment, place of incorporation, or any other criterion of a similar nature...”. The U.S.–X treaty contains no provision regarding income paid or derived through a partnership. (ii) Analysis. For U.S. tax purposes, A is treated as a wholly-owned business entity that is disregarded for federal income tax purposes. How- ever, because, under the laws of X and under X’s application of the treaty, A is treated as deriving the dividend income as a resident of X, A qualifies for benefits under the treaty with respect to the U.S. source dividend. Thus, G, as the taxable person for U.S. tax purposes, may claim the benefit of a re- duced rate under Article 10 of the U.S.–X treaty based on A’s eligibility for tax treaty benefits. (7) Effective date. This paragraph (d) applies to amounts paid on or after January 1, 1998. Michael P. Dolan, Acting Commissioner of Internal Revenue. Approved June 26, 1997. Donald C. Lubick, Acting Assistant Secretary of the Treasury. (Filed by the Office of the Federal Register on June 30, 1997, 12:19 p.m., and published in the issue of the Federal Register for July 2, 1997, 35673). 12 July 21, 19971997-29␣ ␣ I.R.B. Time for Reporting Transfers to Foreign Entities Under Sections 1491 Through 1494 Notice 97–42 This notice modifies the guidance set forth in Notice 97–18, 1997–10 I.R.B. 35, regarding the time for reporting transfers of property to foreign corporations, part- nerships, trusts, or estates as described in section 1491 (“section 1491 transfers”). Background Notice 97–18 provides guidance with re- spect to section 1491 transfers occurring af- ter August 20, 1996, that are reportable un- der section 1494, including the time and manner for reporting such transfers, the manner for making elections pursuant to section 1492, and the penalty imposed by section 1494(c) for failure to report a sec- tion 1491 transfer. That notice provides that a U.S. transferor who is required to re- port a section 1491 transfer may either file Form 926 with the U.S. transferor’s annual tax return or information return for the tax- able year that includes the date of the trans- fer or may file Form 926 on the day the transfer is made. Interest must be paid on the amount of excise tax due with respect to the period between the date on which the transfer occurred and the date on which the excise tax is actually paid. A U.S. transferor can avoid the section 1491 excise tax by making certain elec- tions under section 1492. One election al- lows a U.S. transferor to avoid the excise tax by electing, before the transfer, to ap- ply principles similar to the principles of section 367. Section 1492(2)(B). Alter- natively, a U.S. transferor can avoid the section 1491 excise tax by electing to treat the transfer as a taxable exchange Part III. Administrative, Procedural, and Miscellaneous under section 1057. Section 1492(3). Section III.B of Notice 97–18 provides guidance on the time and manner for making these elections. Section VIII of Notice 97–18 contains a transition provision with respect to the re- porting requirements for the U.S. transferor’s tax year that includes August 20, 1996. That section provides that no penalties will be imposed under section 1494(c) if a Form 926 reporting a section 1491 transfer (or certain other adequate re- porting described in the notice) is filed by the later of the due date of the U.S. transferor’s income tax return, including extensions, for the taxable year in which the transfer occurred, or May 9, 1997 (the date that is 60 days after the date that notice was published in the Internal Revenue Bulletin). This notice extends the time during which certain section 1491 transfers may be reported under that transition provision without the imposition of the section 1494(c) penalty. This notice does not af- fect the interest that accrues on any excise tax due between the date of the transfer and the date on which the excise tax is ac- tually paid. Moreover, this notice does not extend the time for filing under any duplicative reporting provision described in section II.B of Notice 97–18. Guidance With respect to Form 926 for the tax- able year that includes August 20, 1996 (the “1996 Form 926”), no penalty will be imposed under section 1494(c) if the tax- payer files the 1996 Form 926 with the taxpayer’s timely–filed (including exten- sions) income tax return or information return for the first taxable year beginning on or after January 1, 1997, provided the taxpayer’s income tax return or informa- tion return for the tax year that includes August 20, 1996, includes the items of gross income required to be taken into ac- count as a result of an election on the 1996 Form 926 (for example, any gain recognized by the taxpayer as a result of a section 1057 election). Alternatively, no penalty will be imposed under section 1494(c) if the taxpayer files the 1996 Form 926 within the period set forth in Section VIII of Notice 97–18. The U.S. transferor will be deemed to have made, as the case may be, a section 1492(2)(B) election before the transfer, or a section 1057 election in accordance with Treas. Reg. § 301.9100–12T, if the fol- lowing requirements are satisfied: (i) The U.S. transferor otherwise complies with the requirements set forth in Notice 97–18 for making an election under section 1494(2)(B) to apply principles similar to the prin- ciples of section 367, or under section 1492(3) for treating the transfer as a taxable exchange under section 1057; and (ii) With respect to either election, the U.S. transferor’s 1996 Form 926 is filed within the time period set forth in this notice. Effect on Other Guidance Sections III.B and VIII of Notice 97–18 are hereby modified. Drafting Information The principal author of this notice is Michael Kirsch of the Office of Associate Chief Counsel (International). For fur- ther information regarding this notice, contact Mr. Kirsch on (202) 622–3880 (not a toll-free call). 13 1997-29␣ ␣ I.R.B.July 21, 1997 Notice of Proposed Rulemaking and Notice of Public Hearing Guidance Regarding Claims for Income Tax Convention Benefits REG–104893–97 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rule-making by cross-reference to temporary regulations and notice of public hearing. SUMMARY: In T.D. 8722, page 4, the IRS is issuing temporary regulations regarding rules for determining whether U.S. source payments made to entities, including enti- ties that are fiscally transparent in the United States and/or the applicable treaty jurisdiction, are eligible for treaty–reduced tax rates. The text of those temporary regu- lations also serves as the text of these pro- posed regulations. This document also pro- vides notice of a public hearing on these proposed regulations. DATES: Comments and outlines of topics to be discussed at the public hearing sched- uled for September 24, 1997, at 10 a.m. must be received by September 3, 1997. ADDRESSES: Send submissions to: CC: DOM:CORP:R (REG–104893–97), room 5228, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may also be hand de- livered between the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (REG– 104893–97), Courier’s Desk, Internal Rev- enue Service, 1111 Constitution Avenue NW, Washington, DC. Alternatively, tax- payers may submit comments electroni- cally via the internet by selecting the “Tax Regs” option on the IRS Home Page, or by submitting comments directly to the IRS internet site at http://www.irs.ustreas.gov/ prod/tax_regs/comments.html. The public hearing will be held in the Commissioner’s Conference Room, room 3313, Internal Revenue Building, 1111 Constitution Av- enue, NW, Washington, DC. FOR FURTHER INFORMATION CON- TACT: Concerning the regulations, Eliza- beth Karzon, (202) 622-3860; concerning submissions and the hearing, Evangelista Lee, (202) 622-7190 (not toll-free num- bers). Part IV. Items of General Interest SUPPLEMENTARY INFORMATION: Background T.D. 8722 amends the Income Tax Regu- lations (26 CFR part 1) relating to section 894. The temporary regulations contain rules relating to eligibility for benefits un- der income tax conventions for payments to flow–through entities or arrangements. The text of T.D. 8722 also serves as the text of these proposed regulations. The pre- amble to the temporary regulations explains the temporary regulations. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in EO 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Proce- dure Act (5 U.S.C. chapter 5) does not ap- ply to these regulations and, because these regulations do not impose on small entities a collection of information requirement, the Regulatory Flexibility Act (5 U.S.C. chap- ter 6) does not apply. Therefore, a Regula- tory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Busi- ness Administration for comment on its im- pact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are sub- mitted timely to the IRS. All comments will be available for public inspection and copying. A public hearing has been scheduled for September 24, 1997, at 10 a.m. in the Commissioner’s Conference Room, room 3313, Internal Revenue Building, 1111 Constitution Avenue NW., Washington DC. Because of access restrictions, visitors will not be admitted beyond the Internal Rev- enue Building lobby more than 15 minutes before the hearing starts. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral com- ments at the hearing must submit com- ments and an outline of the topics to be dis- cussed and the time to be devoted to each topic by September 3, 1997. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Proposed Effective Date This amendment is proposed to apply to payments received by an entity on or after January 1, 1998. * * * * * Proposed Amendments to the Regulations Accordingly, 26 part 1 is proposed to be amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. In §1.894–1, paragraph (d) is added to read as follows: §1.894–1 Income affected by treaty. * * * * * [The text of proposed paragraph (d) is the same as the text of §1.894–1T(d) pub- lished in T.D. 8722, page 4. Michael P. Dolan, Acting Commissioner of Internal Revenue. (Filed by the Office of the Federal Register on June 30, 1997, 12:19 p.m., and published in the issue of the Federal Register for July 2, 1997, 62 F.R. 35755). Special Rule for U.S. Permanent Residents Receiving Compensation or Pensions From the Government of France Announcement 97–61 The Competent Authorities of the United States and France have entered into an agreement to alleviate the double taxation of U.S. permanent residents with respect to compensation and pensions for governmen- tal services rendered to the French govern- ment. Generally, under the agreement, in- come of this type received in 1996 is 14 July 21, 19971997-29␣ ␣ I.R.B. taxable only in France and income of this type received in 1997 is taxable only in the United States. For 1998 and subsequent years, both the United States and France will tax the income, but the United States will allow a credit for taxes paid to France. Taxpayers who are otherwise required to file an Individual Income Tax Return on Form 1040 for tax year 1996 should attach the following statement to the return: “I/we am/are not taxable in the United States un- der Article 19 of the Income Tax Conven- tion between the United States and France on compensation or pension income re- ceived in 1996 for services rendered to the French Government that are of a govern- mental nature, pursuant to a 1997 Compe- tent Authority agreement between the United States and France.” A taxpayer who has already filed a 1996 return in accor- dance with the Competent Authority agree- ment need not amend the return to include such a statement. A taxpayer who has al- ready filed a 1996 return and paid tax on in- come subject to the Competent Authority agreement should include this statement if filing a claim for refund. Contacts For further information or assistance re- garding the U.S. income tax treatment of compensation and pensions received from the Government of France, please contact Calvin Watson, Tax Treaty Division, Office of the Assistant Commissioner (Interna- tional), ((202) 874–1550 (not a toll-free number)). For information or assistance re- garding the French tax treatment of these compensation and pension payments, please contact Noel Claudon, Fiscal Atta- che, French Embassy, ((202) 944–6390 or (202) 944–6391 (not toll-free numbers)). In France, please contact Centre des Impots des Non-Residents, 9, Rue d’Uzes, 75094 Paris Cedex 02. Announcement 97–70 Transition Relief for Failures To Make Plan Distributions to Certain Employees or Offer Options To Defer Distributions by April 1, 1997 Purpose This announcement provides transition relief for qualified plans that fail to make distributions required under the terms of the plan to an employee who attained age 70 1/2 in 1996 and who did not retire in 1996. This relief is conditioned upon the employer meeting specified requirements with respect to such an employee. Background Section 401(a)(9) of the Internal Rev- enue Code (“Code”) provides that, in or- der for a plan to be qualified under section 401(a), distributions from the plan must commence no later than the “required be- ginning date.” Prior to 1997, section 401(a)(9)(C) generally provided that the required beginning date is April 1 follow- ing the calendar year in which the em- ployee attains age 70 1/2. Section 1404(a) of the Small Business Job Protection Act of 1996 (“SBJPA”) amended section 401(a)(9) of the Code to provide that, in the case of an employee who is not a 5-percent owner, the required beginning date for minimum distributions from a qualified plan is April 1 of the cal- endar year following the later of the cal- endar year in which the employee attains age 70 1/2 or the calendar year in which the employee retires. The amendment to section 401(a)(9) applies to years begin- ning after December 31, 1996. Notice 96–67, 1996–53 I.R.B. 12, De- cember 30, 1996, Q&A–2, provides that, under section 401(a)(9) as amended by the SBJPA, an employee (other than a 5- percent owner) who attained age 70 1/2 in 1996, but who had not retired from em- ployment with the employer maintaining the plan by the end of 1996, is not re- quired to receive a minimum distribution by April 1, 1997. Such an employee’s re- quired beginning date is determined under amended section 401(a)(9), which re- quires distributions to commence by April 1 of the calendar year following the calen- dar year in which the employee retires from employment with the employer maintaining the plan. Many qualified plans continue to contain provisions (consistent with sec- tion 401(a)(9) prior to its amendment by the SBJPA) requiring an employee who attains age 70 1/2 in a calendar year to begin receiving distributions by April 1 of the following calendar year. Announcement 97–24, 1997–11 I.R.B. 24, March 13, 1997, provides that, prior to amending its plan, an em- ployer maintaining a plan is permitted to offer an employee (other than a 5- percent owner) who attains age 70 1/2 in a calendar year after 1995, e.g. 1996, and who does not retire by the end of that calendar year, the option to delay commencement of distributions until no later than April 1 following the calen- dar year in which the employee retires from employment with the employer. Announcement 97–24 notes that future guidance will provide that an employer that offers this option under a plan must amend the plan retroactively to provide for the option. The retroactive plan amendment must conform the plan to its pre-amendment operation regarding this option to defer distributions until after retirement. Announcement 97–24 states that it also applies to an employer that has adopted a master or prototype or a regional prototype plan. Announcement 97–24 notes that if a conforming amendment is not an available option under the sponsor’s prototype plan document, the required amendment may re- sult in the loss of prototype status. Transition Relief Under this announcement, if the re- quirements described below are satis- fied, a plan will not be treated as failing to satisfy the requirements of section 401(a) of the Code merely because the plan fails to make certain distributions required under the terms of the plan to an employee (other than a 5-percent owner) who attained age 70 1/2 in 1996 and who did not retire from employ- ment with the employer maintaining the plan by the end of 1996. The relief in this announcement applies to a plan with respect to distributions required under the terms of the plan to be made to such an employee between August 20, 1996 (the date of enactment of the SBJPA) and December 31, 1997. This relief is available only if: (1) the employee is offered an option to defer the distribution and elects to defer, or a make-up distribution is paid to such em- ployee, and (2) the employee option or the make-up distribution meets the quali- fication requirements under section 401(a) of the Code (other than the re- quirement that a plan operate in accor- dance with its terms). For example, the employee option or the make-up distribu- tion must satisfy the requirements of sec- 15 1997-29␣ ␣ I.R.B.July 21, 1997 tions 401(a)(11) and 417 (relating to joint and survivor annuities). If the employer chooses to offer an election to defer, the election to defer must be made by the employee by De- cember 31, 1997. If an employee chooses not to defer, the plan must pay a make-up distribution to the employee in a manner that satisfies the rules set out below. Whether a make-up distribution from the plan is paid to all employees (other than 5- percent owners) who attained age 70 1/2 in 1996 and who did not retire from employ- ment with the employer maintaining the plan by the end of 1996 or only to any such employee who is offered an election to de- fer but chooses not to defer, the make-up distribution must be made by December 31, 1997 and must include all of the employee’s distributions required under the plan terms up to that date. The make-up distribution must restore to the employee the benefits that the employee would have had if the plan terms had been followed. For example, in the case of a defined ben- efit plan, the make-up distribution for an employee must be increased to take into ac- count the delayed payment consistent with the plan’s actuarial adjustments. Further, future guidance will provide that an employer who offers the option to defer described above under a plan must amend the plan retroactively, no later than the date specified in that guidance, to pro- vide for the option. The retroactive plan amendment must conform the plan to its preamendment operation regarding the option to defer commencement of ben- efits. However, a plan will not fail to sat- isfy this operational requirement merely because the amendment provides for an employee to have the option to either commence distribution by April 1, 1997 or to defer distribution beyond that date but, in operation, the plan provided for an election to defer or make-up distributions in accordance with this announcement. This announcement also applies to an employer that has adopted a master or prototype or a regional prototype plan. Such an employer should note that if a conforming amendment is not an avail- able option under the sponsor’s prototype plan document, the required amendment may result in the loss of prototype status. Availability of Publication 1542, Per Diem Rates (Revised May 1997) Announcement 97– 71 Publication 1542, recently updated, is now available from the Internal Revenue Service. The publication gives the maximum per diem rate employers can use without treat- ing part of the allowance as wages for tax purposes. It also provides the listing of lo- calities eligible for $166 per diem amount under the high-low substantiation method. You can get a copy of this publication by calling 1–800–829–3676. You can also write to the IRS Forms Distribution Cen- ter nearest you. If you have access to a personal com- puter and modem, you also can get the publication electronically. You can get the publication at: 1) World Wide Web-http:// www.irs.ustreas.gov, 2) FTP-ftp.irs.ustreas.gov, and 3) IRIS at FEDWORLD–(703) 321-8020. Deletions From Cumulative List of Organizations Contributions to Which Are Deductible Under Section 170 of the Code Announcement 97– 72 The names of organizations that no longer qualify as organizations described in section 170(c)(2) of the Internal Rev- enue Code of 1986 are listed. Generally, the Service will not disallow deductions for contributions made to a listed organization on or before the date of announcement in the Internal Revenue Bulletin that an organization no longer qualifies. However, the Service is not precluded from disallowing a deduction for any contributions made after an orga- nization ceases to qualify under section 170(c)(2) if the organization has not timely filed a suit for declaratory judg- ment under section 7428 and if the con- tributor (1) had knowledge of the revoca- tion of the ruling or determination letter, (2) was aware that such revocation was imminent, or (3) was in part responsible for or was aware of the activities or omis- sions of the organization that brought about this revocation. If on the other hand a suit for declaratory judgment has been timely filed, contribu- tions from individuals and organizations described in section 170(c)(2) that are oth- erwise allowable will continue to be de- ductible. Protection under section 7428(c) would begin on July 21, 1997, and would end on the date the court first determines that the organization is not described in sec- tion 170(c)(2) as more particularly set forth in section 7428(c)(1). For individual con- tributors, the maximum deduction protected is $1,000, with a husband and wife treated as one contributor. This benefit is not ex- tended to any individual who was respon- sible, in whole or in part, for the acts or omissions of the organization that were the basis for revocation. Kinaman Animal Shelter Erie, PA Don Stewart Association Phoenix, AZ St. Matthews Publishing, Inc. f/k/a Church and Bible Study in the Home by Mail, Inc. Los Angeles, CA Washington Institute for Policy Studies Seattle, WA 16 July 21, 19971997-29␣ ␣ I.R.B. Under 31 Code of Federal Regulations, section 10.76, the Director of Practice is au- thorized to immediately suspend from prac- tice before the Internal Revenue Service any practitioner who, within five years, from the date the expedited proceeding is instituted, (1) has had a license to practice as an attorney, certified public accountant, or actuary suspended or revoked for cause; or (2) has been convicted of any crime un- der title 26 of the United States Code or, of a felony under title 18 of the United States Code involving dishonesty or breach of trust. Attorneys, certified public accountants, enrolled agents, and enrolled actuaries are Announcement of the Expedited Suspension of Attorneys, Certified Public Accountants, Enrolled Agents and Enrolled Actuaries From Practice Before the Internal Revenue Service prohibited in any Internal Revenue Service matter from directly or indirectly employ- ing, accepting assistance from, being em- ployed by, or sharing fees with, any practi- tioner disbarred or suspended from practice before the Internal Revenue Service. To enable attorneys, certified public ac- countants, enrolled agents, and enrolled ac- tuaries to identify practitioners under expe- dited suspensions from practice before the Internal Revenue Service, the Director of Practice will announce in the Internal Rev- enue Bulletin the names and addresses of practitioners who have been suspended from such practice, their designation as at- torney, certified public accountant, enrolled agent, or enrolled actuary, and date or pe- riod of suspension. This announcement will appear in the weekly Bulletin at the earliest practicable date after such action and will continue to appear in the weekly Bulletins for five successive weeks or for as many weeks as is practicable for each attorney, certified public accountant, enrolled agent, or enrolled actuary so suspended and will be consolidated and published in the Cumu- lative Bulletin. The following individuals have been placed under suspension from practice be- fore the Internal Revenue Service by virtue of the expedited proceeding provisions of the applicable regulations: Gas NameAddressDesignationDate of Suspension Newman, Harry J.Covington, VACPAIndefinite from May 16, 1997 Sehnert, FredDallas, TXCPAIndefinite from May 16, 1997 Gaskins, John D.Valdosta, GACPAIndefinite from May 16, 1997 Turner, Charles L.Goshen, KYAttorneyIndefinite from May 16, 1997 Thornton Jr., Kenneth W.Murrells Inlet, SCAttorneyIndefinite from May 16, 1997 Kellogg, RichardWhite Hall, ARCPAIndefinite from May 16, 1997 Stec, Albert J.Schereville, INCPAIndefinite from May 16, 1997 Huff Jr., James G.Raleigh, NCCPAIndefinite from May 16, 1997 Seall, WilliamDayton, OHAttorneyIndefinite from May 16, 1997 Brunner, L. KeithCenterville, OHAttorneyIndefinite from May 16, 1997 Bart, David R.Oakwood, OHAttorneyIndefinite from May 16, 1997 Shafer, David A.Franklin, OHCPAIndefinite from May 16, 1997 Schouman, JamesMilford, MIAttorneyIndefinite from May 16, 1997 Jones, Milo A.Greensboro, NCCPAIndefinite from May 16, 1997 Dolan, Gary L.Lincoln, NEAttorneyIndefinite from May 16, 1997 Coorey, Edward T.Hampton, NHEnrolled AgentIndefinite from May 16, 1997 Sheehan, Thomas J.Maggie Valley, NCCPAIndefinite from May 16, 1997 Millonig, Arthur F.Dayton, OHAttorneyIndefinite from May 16, 1997 McHaffie, Richard T.St. Paul, MNAttorneyIndefinite from June 4, 1997 Rigler, MichaelGainesville, TXCPAIndefinite from June 4, 1997 Hopkins, Diane E.St. Paul, MNAttorneyIndefinite from June 4, 1997 Adae, F. BrianBarrington, RIAttorneyIndefinite from June 4, 1997 17 1997-29␣ ␣ I.R.B.July 21, 1997 Under 31 Code of Federal Regulations, Part 10, an attorney, certified public ac- countant, enrolled agent or enrolled actu- ary, in order to avoid the institution or conclusion of a proceeding for his disbar- ment or suspension from practice before the Internal Revenue Service, may offer his consent to suspension from such prac- tice. The Director of Practice, in his dis- cretion, may suspend an attorney, certified public accountant, enrolled agent, or en- rolled actuary in accordance with the con- sent offered. Attorneys, certified public accountants, enrolled agents, and enrolled actuaries are prohibited in any Internal Revenue Ser- vice matter from directly or indirectly em- ploying, accepting assistance from, being employed by or sharing fees with, any practitioner disbarred or suspended from practice before the Internal Revenue Ser- vice. To enable attorneys, certified public ac- countants, enrolled agents, and enrolled actuaries to identify practitioners under consent suspension from practice before the Internal Revenue Service, the Director of Practice will announce in the Internal Revenue Bulletin the names and ad- dresses of practitioners who have been suspended from such practice, their desig- nation as attorney, certified public ac- countant, enrolled agent, or enrolled actu- ary, and date or period of suspension. This announcement will appear in the weekly Bulletin at the earliest practicable date af- ter such action and will continue to appear in the weekly Bulletins for five successive weeks or for as many weeks as is practi- cable for each attorney, certified public accountant, enrolled agent, or enrolled ac- tuary so suspended and will be consoli- dated and published in the Cumulative Bulletin. The following individuals have been placed under consent suspension from practice before the Internal Revenue Service: NameAddressDesignationDate of Suspension Padgett, JohnOrleans, MAAttorneyMay 22, 1997 to October 21, 1998 Crisp, Jerry W.Dallas, TXCPAJune 1, 1997 to May 31, 2000 Kessel, Donald K.Export, PACPAJune 1, 1997 to November 30, 1998 Klimchak, JosephAliquippa, PACPAJune 1, 1997 to February 28, 1998 Steele, Lewis M.Pittsburgh, PACPAJune 1, 1997 to May 31, 1998 Castleberry, Gene A.Oklahoma City, OKAttorneyJune 4, 1997 to August 3, 1997 O’Connor, Paul J.Hanover, MACPAJune 6, 1997 to June 5, 2000 Olshan, Robert M.Washington, DCCPAJune 10, 1997 to December 9, 1998 Johnson, Kirk L.Ann Arbor, MICPAJuly 1, 1997 to June 30, 1999 Mattutat, StephenElicott City, MDCPAJuly 1, 1997 to March 31, 1998 Trenary, Lloyd R.Oklahoma City, OKCPAAugust 1, 1997 to March 31, 1998 Ritchey Jr., FerrisBirmingham, ALAttorneyAugust 1, 1997 to July 31, 2000 Gold, Howard G.Hamden, CTCPAAugust 1, 1997 to July 31, 1999 Womack, KathleenHammond, LACPAAugust 1, 1997 to July 31, 1999 Announcement of the Consent Suspension of Attorneys, Certified Public Accountants, Enrolled Agents and Enrolled Actuaries From Practice Before the Internal Revenue Service 18 July 21, 19971997-29␣ ␣ I.R.B. Revenue rulings and revenue procedures (hereinafter referred to as “rulings”) that have an effect on previous rulings use the following defined terms to describe the effect: Amplified describes a situation where no change is being made in a prior pub- lished position, but the prior position is being extended to apply to a variation of the fact situation set forth therein. Thus, if an earlier ruling held that a principle applied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare with modified, below). Clarified is used in those instances where the language in a prior ruling is be- ing made clear because the language has caused, or may cause, some confusion. It is not used where a position in a prior rul- ing is being changed. Distinguished describes a situation where a ruling mentions a previously published ruling and points out an essen- tial difference between them. Modified is used where the substance of a previously published position is be- ing changed. Thus, if a prior ruling held that a principle applied to A but not to B, and the new ruling holds that it applies to Definition of Terms both A and B, the prior ruling is modified because it corrects a published position. (Compare with amplified and clarified, above). Obsoleted describes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rulings that are obsoleted because of changes in law or regulations. A ruling may also be obsoleted because the sub- stance has been included in regulations subsequently adopted. Revoked describes situations where the position in the previously published rul- ing is not correct and the correct position is being stated in the new ruling. Superseded describes a situation where the new ruling does nothing more than re- state the substance and situation of a pre- viously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same position published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single ruling a series of situations, names, etc., that were previously published over a pe- riod of time in separate rulings. If the new ruling does more than restate the substance of a prior ruling, a combination of terms is used. For example, modified and superseded describes a situation where the substance of a previously pub- lished ruling is being changed in part and is continued without change in part and it is desired to restate the valid portion of the previously published ruling in a new ruling that is self contained. In this case the previously published ruling is first modified and then, as modified, is super- seded. Supplemented is used in situations in which a list, such as a list of the names of countries, is published in a ruling and that list is expanded by adding further names in subsequent rulings. After the original ruling has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the additions, and supersedes all prior rulings in the series. Suspended is used in rare situations to show that the previous published rulings will not be applied pending some future action such as the issuance of new or amended regulations, the outcome of cases in litigation, or the outcome of a Service study. Abbreviations The following abbreviations in current use and formerly used will appear in material published in the Bulletin. A—Individual. Acq.—Acquiescence. B—Individual. BE—Beneficiary. BK—Bank. B.T.A.—Board of Tax Appeals. C.—Individual. C.B.—Cumulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Cooperative. Ct.D.—Court Decision. CY—County. D—Decedent. DC—Dummy Corporation. DE—Donee. Del. Order—Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. E.O.—Executive Order. ER—Employer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduciary. FC—Foreign Country. FICA—Federal Insurance Contribution Act. FISC—Foreign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Federal Unemployment Tax Act. FX—Foreign Corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grantee. GP—General Partner. GR—Grantor. IC—Insurance Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—Nonacquiescence. O—Organization. P—Parent Corporation. PHC—Personal Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Partnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Real Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsidiary. S.P.R.—Statements of Procedral Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Transferee. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpayer. TR—Trust. TT—Trustee. U.S.C.—United States Code. X—Corporation. Y—Corporation. Z—Corporation. 19 1997-29␣ ␣ I.R.B.July 21, 1997 Numerical Finding List 1 Bulletins 1997–27 through 1997–28 Announcements: 97–67, 1997–27 I.R.B. 37 97–68, 1997–28 I.R.B. 13 97–69, 1997–28 I.R.B. 13 Delegation Orders: 172 (Rev. 5), 1997–28 I.R.B. 6 Notices: 97–37, 1997–27 I.R.B. 4 97–38, 1997–27 I.R.B. 8 97–39, 1997–27 I.R.B. 8 97–40, 1997–28 I.R.B. 6 97–41, 1997–28 I.R.B. 6 Railroad Retirement Quarterly Rate: 1997–28 I.R.B. 5 Revenue Procedures: 97–27, 1997–27 I.R.B. 9 Revenue Rulings: 97–27, 1997–27 I.R.B. 4 97–28, 1997–28 I.R.B. 4 97–29, 1997–28 I.R.B. 4 1 A cumulative list of all revenue rulings, revenue pro- cedures, Treasury decisions, etc., published in Inter- nal Revenue Bulletins 1997–1 through 1997–26 will be found in Internal Revenue Bulletin 1997–27, dated July 7, 1997. 20 July 21, 19971997-29␣ ␣ I.R.B. Finding List of Current Action on Previously Published Items 1 Bulletins 1997–27 through 1997–28 *Denotes entry since last publication Revenue Procedures: 96–42 Superseded by 97–27, 1997–27 I.R.B. 9 1 A cumulative finding list for previously published items mentioned in Internal Revenue Bulletins 1997– 1 through 1997–26 will be found in Internal Revenue Bulletin 1997–27, dated July 7, 1997. 21 1997-29␣ ␣ I.R.B.July 21, 1997 Notes 22 July 21, 19971997-29␣ ␣ I.R.B. Notes 24 July 21, 19971997-29␣ ␣ I.R.B. INTERNAL REVENUE BULLETIN The Introduction on page 3 describes the purpose and content of this publication. The weekly Internal Revenue Bulletin is sold on a yearly subscription basis by the Superintendent of Documents. Current subscribers are notified by the Superintendent of Documents when their subscriptions must be renewed. CUMULATIVE BULLETINS The contents of this weekly Bulletin are consolidated semiannually into a permanent, indexed, Cumulative Bulletin. These are sold on a single copy basis and are not included as part of the subscription to the Internal Revenue Bulletin. Subscribers to the weekly Bulletin are notified when copies of the Cumulative Bulletin are available. Certain issues of Cumulative Bulletins are out of print and are not available. Persons desiring available Cumulative Bulletins, which are listed on the reverse, may purchase them from the Superintendent of Documents. HOW TO ORDER Check the publications and/or subscription(s) desired on the reverse, complete the order blank, enclose the proper remittance, detach entire page, and mail to the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Please allow two to six weeks, plus mailing time, for delivery. WE WELCOME COMMENTS ABOUT THE INTERNAL REVENUE BULLETIN If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we would be pleased to hear from you. You can e-mail us your suggestions or comments through the IRS Internet Home Page (www.irs.ustreas.gov) or write to the IRS Bulletin Unit, T:FP:F:CD, Room 5560, 1111 Constitution Avenue NW, Washington, DC 20224. You can also leave a recorded message 24 hours a day, 7 days a week at 1–800–829–9043. Internal Revenue Service Washington, DC 20224 Official Business Penalty for Private Use, $300 25 1997-29␣ ␣ I.R.B.July 21, 1997 INTERNAL REVENUE BULLETIN The Introduction on page 3 describes the purpose and content of this publication. The weekly Internal Revenue Bulletin is sold on a yearly subscription basis by the Superintendent of Documents. Current subscribers are notified by the Superintendent of Documents when their subscriptions must be renewed. CUMULATIVE BULLETINS The contents of this weekly Bulletin are consolidated semiannually into a permanent, indexed, Cumulative Bulletin. These are sold on a single copy basis and are not included as part of the subscription to the Internal Revenue Bulletin. Subscribers to the weekly Bulletin are notified when copies of the Cumulative Bulletin are available. Certain issues of Cumulative Bulletins are out of print and are not available. Persons desiring available Cumulative Bulletins, which are listed on the reverse, may purchase them from the Superintendent of Documents. HOW TO ORDER Check the publications and/or subscription(s) desired on the reverse, complete the order blank, enclose the proper remittance, detach entire page, and mail to the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Please allow two to six weeks, plus mailing time, for delivery. WE WELCOME COMMENTS ABOUT THE INTERNAL REVENUE BULLETIN If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we would be pleased to hear from you. You can e-mail us your suggestions or comments through the IRS Internet Home Page (www.irs.ustreas.gov) or write to the IRS Bulletin Unit, T:FP:F:CD, Room 5560, 1111 Constitution Avenue NW, Washington, DC 20224. You can also leave a recorded message 24 hours a day, 7 days a week at 1–800–829–9043. Superintendent of Documents U.S. Government Printing Office Washington, DC 20402 Official Business Penalty for Private Use, $300 First Class Mail Postage and Fees Paid GPO Permit No. G–26 23 1997-29 I.R.B.July 21, 1997
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