us-irs-announcements-irb-2008-25-pdf•Internal Revenue Bulletin 2008-25 (PDF rendition): IRS Announcements
Internal Revenue Bulletin 2008-25 (PDF rendition): IRS Announcements
us-irs-announcements-irb-2008-25-pdfInternal Revenue Bulletin 2008-25 (PDF rendition): IRS AnnouncementsGuidance
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Bulletin No. 200 8-25 June 23, 2008 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 Rev. Rul. 2008–30, page 1156. Accounting methods; contributions to capital; public util- ity.This ruling provides that a public utility’s change from treat- ing certain payments received from customers as nontaxable contributions to capital under section 118(c) of the Code to treating the payments as taxable customer connection fees is a change in method of accounting under sections 446(e) and 481. T.D. 9399, page 1157. Final regulations under section 7874 of the Code provide for determining whether a foreign corporation is a surrogate for- eign corporation when the foreign corporation is part of an ex- panded affiliated group. REG–106897–08, page 1175. Proposed regulations under section 274(i) of the Code provide guidance relating to qualified nonpersonal use vehicles. The regulations also add clearly marked public safety officer vehi- cles as a new type of qualified nonpersonal use vehicle. Notice 2008–51, page 1163. This notice provides guidance on qualified Health Savings Ac- count (HSA) funding distributions from an Individual Retirement Account (IRA) to an HSA. Notice 2008–52, page 1166. This notice provides guidance on the contribution limits for Health Savings Accounts (HSAs) for 2007 and later years. Notices 2004–2 and 2004–50 modified. EXEMPT ORGANIZATIONS Announcement 2008–55, page 1178. The IRS has revoked its determination that Texas Reinvest- ment Corporation II of San Antonio, TX; Zebra Project, Inc., of Atlanta, GA; Alliance for Science Health and Environment, Inc., of Melbourne Beach, FL; Gymfest, Inc., of West Seneca, NY; Estrellas Nacientes, Inc., of New York, NY; Dunardry Heritage Association of Rickman, TN; and Students Are For Education, Inc., of Tallahassee, FL, qualify as organizations described in sections 501(c)(3) and 170(c)(2) of the Code. GIFT TAX REG–143716–04, page 1170. Proposed regulations under section 7477 of the Code provide rules for determining whether a donor may petition the Tax Court for a declaratory judgment with respect to the value of a gift, for gift tax purposes, where the gift does not generate any current gift tax liability. A public hearing is scheduled for October 16, 2008. ADMINISTRATIVE REG–143716–04, page 1170. Proposed regulations under section 7477 of the Code provide rules for determining whether a donor may petition the Tax Court for a declaratory judgment with respect to the value of a gift, for gift tax purposes, where the gift does not generate any current gift tax liability. A public hearing is scheduled for October 16, 2008. (Continued on the next page) Finding Lists begin on page ii. REG–106897–08, page 1175. Proposed regulations under section 274(i) of the Code provide guidance relating to qualified nonpersonal use vehicles. The regulations also add clearly marked public safety officer vehi- cles as a new type of qualified nonpersonal use vehicle. June 23, 20082008–25 I.R.B. The IRS Mission Provide Americ a’s taxpayers top quality service by helping them understand an d meet their tax responsibilities and by applying the tax law with integrity and fairness to all. Introduction The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conven- tions, legislation, court decisions, 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 are compiled semiannually into Cumulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all sub- stantive rulings necessary to promote a uniform application of the tax laws, including all rulings that supersede, revoke, mod- ify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless otherwise indi- cated. Procedures relating solely to matters of internal man- agement 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 field offices, 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 Regulations, 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, rulings, 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.—19 86 Code. This part i ncludes rulings and decisions based on provisions of the Intern al Revenue Code of 1986. Part II.—Treaties and Tax Legislation. This part is divided into two subparts as follows: Subpart A, Tax Conventions and Other Related Items, and Subpart B, Leg- islation 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 Subparts. Also included in this part are Bank Secrecy Act Administrative Rul- ings. Bank Secrecy Act Administrative Rulings are issued by the Department of the Treasury’s Office of the Assistant Secre- tary (Enforcement). Part IV .—Items of General Interest. This par t includes notices of proposed rulemakings, disbar- ment an d suspension lists, and announcements. The last Bulletin for each month includes a cumulative index for the matters published during the preceding months. These monthly indexes are cumulated on a semiannual basis, and are published in the last Bulletin of each semiannual period. The c ontents 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, DC 20402. 2008–25 I.R.B.June 23, 2008 June 23, 20082008–25 I.R.B. Place missing child here. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 446.— General Rule for Methods of Accounting 26 CFR 1.446–1: General rule for methods of ac- counting. (Also § 118.) Accounting methods; contributions to capital; public utility.This ruling pro- vides that a public utility’s change from treating certain payments received from customers as nontaxable contributions to capital under section 118(c) of the Code to treating the payments as taxable customer connection fees is a change in method of accounting under sections 446(e) and 481. Rev. Rul. 2008–30 ISSUE Does the change from (1) treating cer- tain payments received from customers as contributions to capital under § 118(c) of the Internal Revenue Code to (2) treating the payments as taxable customer connec- tion fees constitute a change in method of accounting within the meaning of §§ 446 and 481 and the regulations thereunder? FACTS Ucorp oration is a regulated public util- ity th at operates and maintains sanitary sewer lines and sewerage disposal plants. Uchar ges a “customer connection fee” to certa in customers whenUmust build lines to ex tend its existing infrastructure to the cust omer in order to start sewerage dis- posa l services. These customer connection fees financeU’s construction of sewer line exte nsions to the customer. In Ye ars 1, 2 and 3,Utreats the cus- tome r connection fees as contributions in aid o f construction (CIACs) within the mea ning of § 118(c) and excludes the cus tomer connection fees fromU’s gross inc ome as contributions to capital under §11 8(a). As required by § 118(c)(4),U tak es an adjusted basis of zero in the sewer li ne extensions that it constructs and fi- na nces with the customer connection fees. In Year 4,Uconcludes that its customer co nnection fees are properly includible in gr oss income because the exclusion pro- vi ded by § 118(c) does not apply. Begin- ning in Year 4, Uincludes customer con- nection fees i n gross income and capital- izes the cost o f the sewer line extensions constructed and financed with these fees. Uclaims depr eciation deductions for the capitalized cost of these sewer line exten- sions over th e recovery period prescribed under § 168. LAW Section 61( a) and the regulations there- under defi ne gross income to mean, except as otherwi se provided, all income from whatever s ource derived. Section 11 8(a) provides that, in the case of a corpor ation, gross income does not include an y contribution to the capital of the taxpa yer. Section 1 18(c)(1) provides that the term “con tribution to the capital of the taxpayer ” includes certain amounts re- ceived by regulated public water and sewerage disposal utilities as a CIAC. Under § 11 8(c)(4), the adjusted basis of any prop erty acquired with a CIAC that is exclu dable from gross income under §118(c) is zero. Section 446(e) requires a taxpayer who changes its method of accounting to secure the cons ent of the Commissioner before comput ing its taxable income under the new met hod. Under § 1.446–1(e)(2)(ii)(a) of the I ncome Tax Regulations, a change in a met hod of accounting includes a change in the overall plan of account- ing fo r gross income or deductions or achan ge in the treatment of any ma- teria l item used in the overall plan of accou nting. A material item is any item the tr eatment of which affects the proper time for including income or taking a de- duct ion. § 1.446–1(e)(2)(ii)(a). The key char acteristic of a material item “is that it dete rmines the timing of income or deduc- tion s.”Knight-Ridder Newspapers, Inc. v. Unit ed States, 743 F.2d 781, 798 (11th Cir. 198 4). The r elevant question is generally whe ther the treatment of the item per- man ently changes the amount of taxable inc ome over the taxpayer’s lifetime. If the treatment does not permanently affect the taxpayer’s lifetime taxable income, but does or cou ld change the taxable year in which taxab le income is reported, the treatment aff ects timing and is therefore a method of acc ounting.See Knight-Ridder Newspapers, Inc., 743 F.2d at 799;Peoples Bank & Trust C o. v. Commissioner,415 F.2d 1341, 13 44 (7th Cir. 1969);Primo Pants Co. v. Commissioner, 78 T.C. 705, 723 (1982); Rev. Proc. 91–31, 1991–1 C.B. 566, § 3 .02. A change in m ethod of accounting does not inc lude an adjustment of any item of inco me or deduction that does not affect the proper time for including the item in income or taking a deduction. § 1.446–1( e)(2)(ii)(b). For example, cor- rections o f items that are deducted as inter- est or sala ry, but that are in fact payments of divide nds, and corrections of items that are deduc tedasbusinessexpenses,but that are i n fact personal expenses, are not changes i n method of accounting.Id. Section 4 81(a) requires a taxpayer to take into account any adjustment to taxable income ne cessary to prevent amounts from being du plicated or omitted as a result of a change i n method of accounting. InSalin eSewerCo.v.Commissioner, T.C. Mem o. 1992–236, the Tax Court held tha t a change from excluding cus- tomer co nnection fees from gross income, as nont axable CIACs under § 118, to in- cludin g the customer connection fees in gross i ncome was not a change in method of acco unting because, according to the court, “no timing issue [wa]s involved.” 63 T.C .M. (CCH) 2834. The taxpayer in Salin eSewertreated customer connection fees a s an excludable CIAC under § 118, which requiredanadjustedbasisofzeroin the im provements constructed with these fees . Upon examination of the taxpayer’s inco me tax return, the Service determined that the customer connection fees did not qual ify for the exclusion under § 118. The Serv ice proposed to change the taxpayer’s meth od of accounting to include customer con nection fees in income and increase the depreciable basis of the improvements con structed with these fees. In r eaching its conclusion that the cha nge imposed by the Service did not con stitute a change in method of account- ing , the court analyzed the receipt of the 2008–25 I.R.B.1156June 23, 2008 customer connection fees independently from the effect on depreciable basis of the improvements constructed with those fees. The court concluded that a change from excluding customer connection fees from income to including them in income gives rise to a permanent difference in lifetime income, not a timing difference, and therefore is not a change in accounting method. Similarly, the court concluded that a change in the depreciable basis of the improvements results in a permanent difference in the amount of depreciation deductions allowed, and that this change is not a change in accounting method. The court did not consider the effect of the combined changes in income, basis, and depreciation on the taxpayer’s lifetime taxable income.See also Florida Progress Corp. v. United States, 156 F.Supp.2d 1265, 1276 (M.D. Fla. 1999) (relying uponSaline Sewerand holding that the change in treatment of customer connec- tion fees was not a change in method of accounting),aff’d per curiam on other issues, 264 F.3d 1313 (11th Cir. 2001). ANALYSIS WhetherU’s change to the treatment of its customer connection fees is a change in method of accounting depends upon whether the change permanently affects U’s lifetime taxable income. IfU’s change has no effect on its lifetime taxable in- come, but affects only the timing of that income, then it is a change in method of accounting. “Taxable income,” as defined in § 63, means gross income minus allow- able deductions. Therefore, an analysis of the effect ofU’s change on lifetime taxable income must consider the effect on both income and deductions. Section 118 affects both the gross income and the deduction of CIACs qual- ifying under § 118(c). Section 118(c)(1) excludes the customer connection fees from gross income, and § 118(c)(4) man- dates a depreciable basis of zero for the improvements constructed with these cus- tomer connection fees, resulting in no depreciation or other deduction. The net effect of § 118(c) is to deny depreciation deductions for infrastructure developed with funds previously excluded from in- come.SeeSmall Business Job Protection Act of 1996, H.R. Rep. No. 104–737, at 316 (1996) (indicating that the designa- tion “contributions in aid of construction” impacts both gross income and basis). U’s lifetime taxable income with re- spect to its customer connection fees is the same whether those fees are treated as (1) gross income followed by allow- able depreciation deductions or (2) non- taxable CIACs resulting in zero basis and no depreciation deductions. Under its ex- isting treatment,Uexcludes the customer connection fees from gross income and can take no depreciation deductions be- cause the customer connection fees are not included in the depreciable basis of the assets constructed with the fees.See § 118(c). Under its contemplated treat- ment,Uincludes the customer connection fees in gross income and may take depre- ciation deductions (over the assets’ recov- ery periods) because the customer connec- tion fees create depreciable basis in the as- sets constructed with the fees. Thus,U’s lifetimetaxableincomewillbethesame under either treatment because there are corresponding and offsetting changes in U’s gross income and deductions. Accord- ingly,U’s change from treating customer connection fees as nontaxable CIACs un- der § 118(c) to treating the payments as includible in gross income constitutes a change in method of accounting within the meaning of §§ 446 and 481 and the regula- tions thereunder.See Johnson v. Commis- sioner, 108 T.C. 448, 495 (1997) (both in- come and related offsetting deductions are considered when determining if lifetime income is affected),aff’dinpart,rev’din part,184 F.3d 786, 790 (8th Cir. 1999); Rankin v. Commissioner, 138 F.3d 1286, 1289 (9th Cir. 1998) (combined effect of current-year deductions and offsetting in- come in future years must be considered in determining whether a change in method of accounting occurs);see alsoRev. Proc. 2002–9, 2002–1 C.B. 327, §§ 1.01, 1A.01 of the APPENDIX. The legislative history of § 118 supports this conclusion. When originally enacted, § 118 functioned much as it does today: it allowed certain regulated public utilities to exclude CIACs from gross income (and required a reduction in depreciable basis). The legislative history is clear that Con- gress viewed the exclusion as a method of accounting.SeeS. Rept. No. 94–938, at 436 (1976) (“If a taxpayer wishes to change its present practice of treating con- tributions in aid of construction to a prac- tice which is consistent with this provi- sion, such change constitutes a change in method of accounting”). The exclusion for CIACs was repealed but reenacted in 1996. In reenacting the exclusion, Con- gress did not address or revisit the question of whether a change to or from § 118 treat- ment is a change in method of account- ing.SeeH.R. Rep. No. 104–737, at 316 (1996). HOLDING A change from treating certain pay- ments received from customers as non- taxable contributions to capital under § 118(c) to treating the payments as tax- able customer connection fees is a change in method of accounting under §§ 446 and 481. Similarly, a change from treating cus- tomer connection fees as taxable customer connection fees to nontaxable contribu- tions to capital under § 118(c) constitutes a change in method of accounting under §§ 446 and 481. For the foregoing reasons, the Service does not acquiesce in the holdings on this issue inSaline Sewer Co. v. Com- missioner, T.C. Memo. 1992–236, and Florida Progress Corp. v. United States, 156 F.Supp.2d 1265 (M.D. Fla. 1999). DRAFTING INFORMATION The principal author of this revenue rul- ing is Karla M. Meola of the Office of As- sociate Chief Counsel (Income Tax & Ac- counting). For further information regard- ing this revenue ruling, contact Ms. Meola at (202) 622–4930 (not a toll-free call). Section 7874.—Rules Relating to Expatriated Entities and Their Foreign Parents 26 CFR 1.7874–1: Disregard of affiliate-owned stock. T.D. 9399 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Guidance Under Section 7874 for Determining the Ownership June 23, 200811572008–25 I.R.B. Percentage in the Case of Expanded Affiliated Groups AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulation. SUMMARY: This document contains final regulations under section 7874 of the Inter- nal Revenue Code (Code) relating to the disregard of certain affiliate-owned stock in determining whether a corporation is a surrogate foreign corporation under sec- tion 7874(a)(2)(B) of the Code. DATES:Effective Date:These regulations are effective on May 20, 2008. Applicability Date:For the date of ap- plicability, see §1.7874–1(g). FOR FURTHER INFORMATION CONTACT: Milton Cahn, 202–622–3860 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background Section 7874 provides rules for expa- triated entities and their surrogate foreign corporations. An expatriated entity is de- fined in section 7874(a)(2)(A) as a do- mestic corporation or partnership with re- spect to which a foreign corporation is a surrogate foreign corporation, and any U.S. person related (within the meaning of section 267(b) or section 707(b)(1)) to such domestic corporation or partnership. Generally, a foreign corporation is a sur- rogate foreign corporation under section 7874(a)(2)(B) if, pursuant to a plan or a se- ries of related transactions, certain condi- tions are met. One such condition depends on the percentage of owner continuity in the foreign corporation after the acquisi- tion. This condition is satisfied if, after the acquisition, at least 60 percent of the stock (byvoteorvalue)oftheforeigncorpora- tion is held (in the case of an acquisition with respect to a domestic corporation) by former shareholders of the domestic cor- poration by reason of holding stock in the domestic corporation, or (in the case of an acquisition with respect to a domestic part- nership) by former partners of the domes- tic partnership by reason of holding a cap- ital or profits interest in the domestic part- nership. See section 7874(a)(2)(B)(ii). The treatment of expatriated entities and surrogate foreign corporations varies depending on this percentage (ownership fraction). If the ownership fraction is 80 percent or more, the surrogate foreign corporation is treated as a domestic corpo- ration for all purposes of the Code. If the ownership fraction is 60 percent or more (but less than 80 percent), the surrogate foreign corporationis treated as a foreign corporation, but certain income or gain recognized by the expatriated entity gen- erally cannot be offset by net operating losses or credits from the first date prop- erties are acquired pursuant to the plan through the end of the 10-year period fol- lowing the completion of the acquisition. Section 7874(c)(2)(A) provides that stock held by members of the “expanded affiliated group” which includes the for- eign corporation is not taken into account for purposes of the ownership fraction (affiliate-owned stock rule). Section 7874(c)(1) defines the term expanded affiliated group (EAG) as an affiliated group defined in section 1504(a), but without regard to the exclusion of foreign corporations in section 1504(b)(3) and with a reduction of the 80 percent own- ership threshold of section 1504(a) to a more-than-50 percent threshold. Section 7874(g) provides that “[t]he Secretary shall provide such regulations as are necessary to carry out this sec- tion, including regulations providing for such adjustments to the application of this section as are necessary to prevent the avoidance of the purposes of this section, including the avoidance of such purposes through . . . the use of related persons, pass-through or other noncorporate enti- ties, or other intermediaries . . . .” Section 7874(c)(6) provides that “[t]he Secretary shall prescribe such regulations as may be appropriate to determine whether a corpo- ration is a surrogate foreign corporation, including regulations . . . to treat stock as not stock.” On December 28, 2005, a temporary regulation (T.D. 9238, 2006–1 C.B. 408) was published in the Federal Register (70 FR 76685) that related to the disregard of affiliate-owned stock under section 7874(c)(2)(A). A notice of proposed rule- making (REG–143244–05, 2006–1 C.B. 419) cross-referencing the temporary regulation was published in the Federal Register for the same day (70 FR 76732). No public hearing was requested or held. Written and electronic comments respond- ing to the notice of proposed rulemaking were received. After consideration of all the comments, the proposed regulation is adopted, as amended by this Treasury decision, as final, and the corresponding temporary regulation is removed. The revisions are discussed below. Summary of Comments and Revisions A.Temporary and Proposed Regulations Treasury regulation §1.7874–1T pro- vides guidance under the affiliated-owned stock rule. Generally, §1.7874–1T pro- vides that stock owned by members of an EAG is excluded from both the numer- ator and denominator of the ownership fraction. However, affiliate-owned stock is excluded from the numerator of the ownership fraction, but is included in the denominator of the ownership fraction, in two instances: (1) certain transactions occurring as part of an internal group re- structuring involving a domestic entity; and (2) certain acquisitive business trans- actions between unrelated parties where the former shareholders or partners of the domestic entity have aminority interest in the acquired properties after the acquisi- tion. With respect to internal group restruc- turings, the special rule applies where the common parent of the EAG after the acqui- sition owns directly orindirectly at least 80 percent of the domestic entity before the acquisition, and non-members of the EAG hold, by reason of holding an interest in the domestic entity, no more than 20 percent of the stock (by vote or value) of the foreign corporation after the acquisition. With respect to transactions between unrelated parties, the special rule applies where, after the acquisition, the former owners of the domestic entity do not own, in the aggre- gate, directly or indirectly, more than 50 percent of the stock (by vote or value) of any member of the EAG. Section 1.7874–1T also provides guid- ance regarding the treatment of certain “subsidiary-owned” interests (which in- clude so-called “hook stock”) for purposes of the exceptions to the general application of the ownership fraction. These rules ap- ply to stock or partnership interests owned by an entity in which at least 50 percent 2008–25 I.R.B.1158June 23, 2008 of the stock (by vote or value), or at least 50 percent of the capital or profits inter- est, is owned directly or indirectly by the issuer of such stock or by the partnership in question. These rules are included in the final reg- ulations, with revisions as noted below. B.Section 1504(a)(4) Preferred Stock Both the numerator and denominator of the ownership fraction take into account stock described in section 1504(a)(4) (so- called “plain vanilla preferred stock”). For purposes of determining whether an af- filiated group constitutes an EAG, how- ever, such stock is not treated as stock because of the reference to the rules of section 1504(a). See section 7874(c)(1). Commentators have noted the inconsistent treatment of plain vanilla preferred stock in section 7874. In addition, they point out that, due to the debt-like nature of such stock, it should not be treated as stock for any purpose of section 7874, including the ownership fraction. The Treasury Department and the IRS note that Congress has expressly stated that section 1504(a)(4) preferred stock is not treated as stock in several Code pro- visions, including certain provisions of section 7874, as noted above. See, for example, sections 243(c)(1), 246A(c)(4), and 355(g)(2)(B)(iv)(III). In contrast, Congress specifically chose not to ex- clude plain vanilla preferred stock from the ownership fraction. Although sec- tion 7874 grants the Treasury Department and the IRS the authority to treat stock as not stock when such treatment would further the purposes of section 7874, the legislative history to section 7874 does not suggest that the treatment of plain vanilla preferred stock in the ownership fraction is inconsistent with the purposes of section 7874. The Treasury Department and the IRS therefore decline to exercise the regulatory authority to exclude plain vanilla preferred stock in the calculation of the ownership fraction. Accordingly, all classes of stock, including plain vanilla preferred stock, areincluded in the own- ership fraction and treated as stock for purposes of section 7874, other than for purposes of determining the EAG. The Treasury Department and the IRS considered whether the treatment of plain vanilla preferred stock in the EAG defi- nition should be made consistent with the treatment of plain vanilla preferred stock in the ownership fraction. After study- ing the issue, the Treasury Department and the IRS believe that taking plain vanilla preferred stock into account for purposes of the definition of an EAG may facili- tate the avoidance of the rules regarding EAGs. Consequently, the Treasury De- partmentandtheIRSalsodeclinetoex- ercise regulatory authority to amend the treatment of plain vanilla preferred stock for purposes of defining an EAG. The Treasury Department and the IRS will, however, continue to monitor the use of vanilla preferred stock and its treatment under section 7874. C.Internal Restructuring Exception Treasury regulation §1.7874–1T(c)(1) provides that stock held by a member of an EAG is included in the denominator, but not the numerator, of the ownership frac- tion if two conditions are satisfied. First, the common parent of the EAG must own directly or indirectly at least 80 percent of the stock (by vote or value) or the capital or profits interest in the domestic entity prior to the acquisition. Second, following the acquisition non-members of the EAG, by reason of holding stock or a capital or prof- its interest in the domestic entity, must not ownmorethan20percentofthestock(by vote or value) of the foreign corporation. One commentator suggested that the re- quirement should merely look to the stock ownership of the common parent of the EAG both before and after the acquisi- tion. The Treasury Department and the IRS agree with this suggestion. In addi- tion, the Treasury Department and the IRS have determined that the rule should be modified to consider the stock by vote and value held by the common parent of the EAG. Consequently, stock of a member of an EAG is included in the denominator, but not the numerator of the ownership frac- tion, if the common parent of the EAG held directly or indirectly at least 80 percent of the stock (by vote and value) or the capi- tal and profits interest, as applicable, of the domestic entity before the acquisition, and holds at least 80 percent of the stock (by vote and value) of the foreign acquiring corporation after theacquisition. Corre- sponding revisions have been made to the examples. D.Hook Stock One commentator requested clarifica- tion of the wording of §1.7874–1T(d) re- garding the treatment of hook stock. In re- sponse to this comment, the provision is clarified to exclude hook stock from both the numerator and denominator of the frac- tions that are used to determine whether the exceptions to the general rule apply (that is, the determination of whether the acquisition resulted in an internal group re- structuring or a loss of control of the do- mestic entity). Regulations Addressing Avoidance of the Purposes of Section 7874 The Treasury Department and the IRS understand that taxpayers may be taking the position that a foreign corporation that acquires substantiallyall of the properties of a domestic corporation in a title 11 or similar case may not be a surrogate foreign corporation because it fails to satisfy the stock ownership requirement described in section 7874(a)(2)(B)(ii). These taxpayers maintain that creditors of the domestic corporation, which typically receive all of the stock of the acquiring foreign corpora- tion issued in the title 11 or similar case, are not considered former shareholders of the domestic corporation for purposes of section 7874(a)(2)(B)(ii). Thus, they take the position that the creditors do not hold the stock of the foreign acquiring corporation received by reason of holding stock in the domestic corporation. Under this position, there often would be little or no continuity of ownership for pur- poses of section 7874(a)(2)(B)(ii) and, as a result, the foreign corporation would not be a surrogate foreign corporation. Taxpayers take this position even though the creditors, in substance, are the equity owners of the domestic corporation at the time of the title 11 or similar case and acquire the stock issued by the acquir- ing foreign corporation by reason of their status as creditors of the domestic corpo- ration.Helvering v. Alabama Asphaltic Limestone Co., 315 U.S. 179 (1942). The Treasury Department and the IRS disagree with this characterization under current law and are considering issuing regulations to clarify the proper applica- tion of the rules to such transactions. Sec- tion 7874(c)(6) provides that the Secretary June 23, 200811592008–25 I.R.B. shall prescribe such regulations as may be appropriate to determine whether a corpo- ration is a surrogate foreign corporation, including regulations: (i) to treat warrants, options, contracts to acquire stock, con- vertible debt interests, and other similar in- terests as stock, and (ii) to treat stock as not stock. These regulations would pro- vide, as appropriate, that for purposes of section 7874(a)(2)(B)(ii), creditors of a do- mestic corporation emerging from a title 11 or similar case are treated as former shareholders of such corporation. The reg- ulations would further provide, as appro- priate, that for this purpose, stock issued by the foreign acquiring corporation to such creditors is held by reason of holding stock in the domestic corporation. Similar rules may apply to acquisitions of substantially all the properties constituting a trade or business of a domestic partnership. The Treasury Department and the IRS also understand that some taxpayers may be taking the position that, where two or more domestic entities described in section 7874(a)(2)(B)(i) are acquired pursuant to an overall plan, section 7874(a)(2)(B) is applied separately to each such domestic entity. For example, taxpayers may take this position where a foreign corporation is formed to acquire, in exchange for its stock, 100 percent of the stock of two domestic corporations that have approxi- mately the same value. In such a case, af- ter the acquisition the former sharehold- ers of the two domestic corporations, in the aggregate, would hold 100 percent of the stock of the foreign acquiring corpo- ration by reason of holding stock in the domestic corporations. However, the tax- payers may claim that the ownership frac- tion applies separately to each acquisition such that the ownership fraction would be approximately 50 percent, rather than 100 percent. Under this interpretation, the acquiring foreign corporation would not be a surrogate foreign corporation be- cause the condition described in section 7874(a)(2)(B)(ii) would not be satisfied. The Treasury Department and the IRS disagree with this interpretation under current law and are considering issuing regulations to clarify the proper appli- cation of the rules. These regulations would clarify that the references in section 7874(a)(2)(B) to “a domestic corporation” shall, as appropriate, mean “one or more domestic corporations” where the proper- ties of such corporations are, directly or indirectly, acquired pursuant to the same plan. Similar clarifications will be made with respect to acquisitions involving properties of domestic partnerships. Finally, the Treasury Department and the IRS understand that some taxpayers may be attempting to avoid the applica- tion of section 7874 by structuring acquisi- tions of domestic entities by foreign corpo- rations through the use of intervening part- nerships. For example, a foreign acquir- ing corporation may issue new shares to a newly formed domestic partnership in ex- change for a 99 percent interest in the part- nership. The shares transferred to the do- mestic partnership constitute 70 percent of the outstanding stock of the foreign acquir- ing corporation. An affiliate of the foreign acquiring corporation would transfer cash or other property to the partnership for the remaining one percent interest. The for- eign acquiring corporation then transfers its 99 percent interest in the domestic part- nership to the shareholders of a domestic corporation in exchange for 100 percent of the stock of the domestic corporation. The taxpayers take the position that this transaction is not subject to section 7874 even though, in substance, the foreign ac- quiring corporation acquired 100 percent of the stock of the domestic corporation and the former shareholders of the domes- tic corporation, through their 99 percent interest in the domestic partnership, hold more than 60 percent of the stock of the foreign acquiring corporation by reason of holding stock in the domestic corporation. Under this interpretation, which relies on treating the partnership as an entity (rather than as an aggregate of its partners), the ownership fraction would be zero because none of the foreign acquiring corporation stock held by the partnership was held by former shareholders of the domestic cor- poration. Thus, section 7874 would not ap- ply to the transaction. The Treasury Department and the IRS disagree with this characterization under current law and are considering issuing regulations to clarify the proper applica- tion of the rules to these transactions. The regulations would provide, as appropri- ate, that for purposes of applying section 7874(a)(2)(B)(i) to these structures, the ex- change of an interest in a domestic en- tity for an interest in a partnership shall be treated as an exchange of the interest in the domestic entity for apro ratashare of the assets of the partnership. The regulations described above, which may be issued in conjunction with the fi- nalization of the §1.7874–2T regulations, may be effective as of May 20, 2008. However, no inference is intended as to the potential applicability of other Code or regulatory provisions, or judicial doctrines (including substance over form) to the transactions described above. Effective/Applicability date Section 1.7874–1 applies to acquisi- tions completed on or after May 20, 2008, subject to transition relief for certain ac- quisitions entered into pursuant to binding commitments. In addition, taxpayers may elect to apply this sectiontoprioracquisi- tions, but must apply it consistently to all acquisitions within its scope. Special Analyses It has been determined that this Trea- sury decision is not asignificant regula- tory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been deter- mined that section 553(b) of the Admin- istrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and because these regulations do not impose a collection of information on small entities, the provisions of the Regulatory Flexibil- ity Act (5 U.S.C. chapter 6) do not apply. Pursuant to section 7805(f) of the Inter- nal Revenue Code, the notice of proposed rulemaking preceding this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Admin- istration for comments on its impact on small business. Drafting Information The principal author of this regulation isMiltonCahn,OfficeofAssociateChief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in its develop- ment. ***** Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: 2008–25 I.R.B.1160June 23, 2008 PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding an entry in numerical order to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Section 1.7874–1 also issued under 26 U.S.C. 7874(c)(6) and (g). §1.7874–1T [Removed] Par. 2. Section 1.7874–1T is removed. Par. 3. Section 1.7874–1 is added to read as follows: §1.7874–1 Disregard of affiliate-owned stock. (a)Scope. Section 7874(c)(2)(A) pro- vides that stock of the foreign corpora- tion referred to in section 7874(a)(2)(B) held by members of the expanded af- filiated group (EAG) that includes such foreign corporation shall not be taken into account in determining ownership for purposes of section 7874(a)(2)(B)(ii). This section provides rules under sec- tion 7874(c)(2)(A). The rules provided in this section are also subject to section 7874(c)(4). (b)General rule. Except as provided in paragraph (c) of this section, for purposes of the ownership percentage determina- tion required by section 7874(a)(2)(B)(ii), stock held by one or more members of the EAG is not included in either the nu- merator or the denominator of the fraction that determines such percentage (owner- ship fraction). (c)Exceptions to general rule—(1) Overview. Stock held by one or more members of the EAG shall be included in the denominator, but not in the nu- merator, of the ownership fraction, if the acquisition qualifies as aninternal group restructuringor results in aloss of control, as described in paragraph (c)(2) and (c)(3) of this section. (2)Internal group restructuring.For purposes of paragraph (c)(1) of this sec- tion, an acquisition qualifies as an internal group restructuring if: (i) Before the acquisition, 80 percent or more of the stock (by vote and value) or the capital and profits interest, as appli- cable, of the domestic entity was held di- rectly or indirectly by the corporation that is the common parent of the EAG after the acquisition; and (ii) After the acquisition, 80 percent or more of the stock (by vote and value) of the acquiring foreign corporation is held directly or indirectly by such common par- ent. (3)Loss of control. For purposes of paragraph (c)(1) of this section, the ac- quisition results in a loss of control if af- ter the acquisition, the former sharehold- ers or partners of the domestic entity do not hold, in the aggregate, directly or in- directly, more than 50 percent of the stock (by vote or value) of any member of the EAG. (d)Treatment of certain hook stock. This paragraph applies to stock of a cor- poration that is held by an entity in which at least 50 percent of the stock (by vote or value) or at least 50 percent of the capital or profits interest, as applicable, in such entity, is held directly or indirectly by the corporation. The stock to which this paragraph applies shall not be included in either the numerator or denominator of any fraction for the following purposes: (1) For applying paragraph (c)(1) of this section; and (2) For determining whether the acqui- sition qualifies as an internal group re- structuring (described in paragraph (c)(2) of this section) or results in a loss of con- trol (described in paragraph (c)(3) of this section). (e)Stock held by a partnership.For purposes of section 7874, stock held by a partnership shall be considered as held proportionately by its partners. (f)Examples. The application of this section is illustratedby the following ex- amples. It is assumed that all transactions in the examples occur after March 4, 2003. In all the examples, if an entity or other person is not described as either domestic or foreign, it may be either domestic or for- eign. In addition, each entity has only a single class of equityoutstanding. Finally, the analysis of the following examples is limited to a discussion of issues under sec- tion 7874, even though the examples may raise other issues (for example, under sec- tion 367). Example 1. Disregard of hook stock—(i)Facts. USS, a domestic corporation, has 100 shares of stock outstanding. USS’s stock is held by a group of indi- viduals. Pursuant to a plan, USS forms FS, a foreign corporation, and transfers to FS the stock of several wholly owned foreign corporations, in exchange for 90 shares of FS stock. FS then forms Merger Sub, a domestic corporation. Under a merger agreement and state law, Merger Sub merges into USS, with USS surviving the merger. In exchange for their USS stock, the former shareholders of USS receive, in the aggregate, 100 shares of newly issued FS stock. As a result of the merger FS holds 100 percent of the USS stock. USS continues to hold 90 shares of FS stock. (ii)Analysis. FS has indirectly acquired substan- tially all the properties held directly or indirectly by USS pursuant to a plan. After the acquisition, the for- mer shareholders of USS hold 100 shares of FS stock by reason of holding stock in USS, and USS holds 90 shares of FS stock. Under paragraph (b) of this sec- tion, the 90 shares of FS stock held by USS, a member of the EAG, are not included in either the numerator or the denominator of the ownership fraction. Ac- cordingly, the ownership fraction is 100/100. If the condition in section 7874(a)(2)(B)(iii) is satisfied, FS is a surrogate foreign corporation which is treated as a domestic corporation under section 7874(b). Example 2. Internal group restructuring; wholly owned corporation—(i)Facts. P, a corporation, owns all 100 outstanding shares of USS, a domestic cor- poration. USS forms FS, a foreign corporation, and transfers all its assets to FS in exchange for all 100 shares of the stock of FS, in a reorganization de- scribed in section 368(a)(1). P exchanges its USS stock for FS stock under section 354. (ii)Analysis. FS has directly acquired substan- tially all the properties held directly or indirectly by USS pursuant to a plan. The acquisition is an inter- nal group restructuring described in paragraph (c)(2) of this section because P, the common parent of the EAG after the acquisition, held directly or indirectly 80 percent or more of the stock (by vote and value) of USS before the acquisition, and after the acquisi- tion, P holds directly or indirectly 80 percent or more of the stock (by vote and value) of FS. Accordingly, under paragraph (c)(1) of this section, the FS stock held by P is included in the denominator, but not in the numerator of the ownership fraction. Therefore, the ownership fraction is 0/100. FS is not a surrogate foreign corporation. Example 3. Internal group restructuring; wholly owned corporation—(i)Facts. The facts are the same as inExample 2, except that USS does not transfer any of its assets to FS. Instead, P transfers all 100 shares of USS stock to FS in exchange for all 100 shares of FS stock. (ii)Analysis. FS has indirectly acquired substan- tially all the properties held directly or indirectly by USS pursuant to a plan. The acquisition is an inter- nal group restructuring described in paragraph (c)(2) of this section because P, the common parent of the EAG after the acquisition, held directly or indirectly 80 percent or more of the stock (by vote and value) of USS before the acquisition, and after the acquisition, P holds directly or indirectly 80 percent or more of the stock (by vote and value) of FS. Accordingly, un- der paragraph (c)(1) of this section, the FS stock held by P is included in the denominator, but not in the nu- merator of the ownership fraction. Accordingly, the ownership fraction is 0/100. FS is not a surrogate for- eign corporation. Example 4. Internal group restructuring; less than wholly owned corporation—(i)Facts. The facts are the same as inExample 3,exceptthatPholds85 shares of USS stock. The remaining 15 shares of USS stock are held by A, a person unrelated to P. P and A June 23, 200811612008–25 I.R.B. transfer their shares of USS stock to FS in exchange for 85 and 15 shares of FS stock, respectively. (ii)Analysis. FS has indirectly acquired substan- tially all the properties held directly or indirectly by USS pursuant to a plan. The acquisition is an inter- nal group restructuring described in paragraph (c)(2) of this section because P, the common parent of the EAG after the acquisition, held directly or indirectly 80 percent or more of the stock (by vote and value) of USS before the acquisition, and after the acquisition P holds directly or indirectly 80 percent or more of the stock (by vote and value) of FS. Therefore, under paragraph (c)(1) of this section, the FS stock held by P is included in the denominator, but not in the nu- merator of the ownership fraction. Accordingly, the ownership fraction is 15/100. FS is not a surrogate foreign corporation. Example 5. Internal group restructuring excep- tion not applicable; less than 80 percent owned cor- poration—(i)Facts. The facts are the same as inEx- ample 2, except that P owns 55 shares of USS stock, and A, a person unrelated to P, holds 45 shares of USS stock. P and A exchange their shares of USS stock for 55 shares and 45 shares of FS stock, respectively. (ii)Analysis. FS has acquired substantially all the properties held directly or indirectly by USS pursuant to a plan. P, the common parent of the EAG after the acquisition, did not hold directly or indirectly 80 per- cent or more of the stock (by vote and value) of USS before the acquisition, and after the acquisition P does not hold directly or indirectly 80 percent or more of the stock (by vote and value) of FS. Thus, the acquisi- tion is not an internal group restructuring described in paragraph (c)(1) of this section, and the general rule of paragraph (b) of this section applies. Under para- graph (b) of this section, the FS stock held by P, a member of the EAG, is not included in either the nu- merator or the denominator of the ownership fraction. Accordingly, the ownership fraction is 45/45. If the condition in section 7874(a)(2)(B)(iii) is satisfied, FS is a surrogate foreign corporation which is treated as a domestic corporation under section 7874(b). Example 6. Internal group restructuring; hook stock—(i)Facts. USS, a domestic corporation, has 100 shares of stock outstanding. P, a corporation, holds 80 shares of USS stock. The remaining 20 shares of USS stock are held by A, a person unre- lated to P. USS owns all 30 outstanding shares of FS, a foreign corporation. Pursuant to a plan, FS forms Merger Sub, a domestic corporation. Under a merger agreement and state law, Merger Sub merges into USS, with USS surviving the merger as a sub- sidiary of FS. In exchange for their USS stock, P and A, the former shareholders of USS, respectively re- ceive 56 and 14 shares of FS stock. USS continues to hold 30 shares of FS stock. (ii)Analysis. FS has indirectly acquired substan- tially all the properties held directly or indirectly by USS pursuant to a plan. Under paragraph (b) of this section, the shares of FS stock held by P and USS, both of which are members of the EAG, are not in- cluded in either the numerator or denominator of the ownership fraction, unless the acquisition results in an internal group restructuring or loss of control of USS such that the exception of paragraph (c)(1) of this section applies. In determining whether the ac- quisition of USS is an internal group restructuring, under paragraph (d)(2) of this section, the FS stock held by USS is disregarded. Because P held directly or indirectly 80 percent or more of the stock (by vote and value) of USS before the acquisition, and after the acquisition P holds directly or indirectly 80 per- cent or more of the stock (by vote and value) of FS (whendisregardingtheFSstockheldbyUSS),the acquisition is an internal group restructuring and the exception of paragraph (c)(1) of this section applies. Accordingly, when determining whether FS is a sur- rogateforeigncorporation,theFSstockheldbyPis included in the denominator, but not the numerator of the ownership fraction. However, under paragraph (b) of this section, the FS stock held by USS is not in- cluded in either the numerator or denominator of the ownership fraction. Accordingly, the ownership frac- tionis14/70,or20percent,sinceonlythestockheld by A is included in the numerator, and the stock held by both P and A is included in the denominator. Ac- cordingly, FS is not a surrogate foreign corporation. Example 7. Loss of control—(i)Facts. P, a corpo- ration, holds all the outstanding stock of USS, a do- mestic corporation. B, a corporation unrelated to P, holds all 60 outstanding shares of FS, a foreign cor- poration. P transfers to FS all the outstanding stock of USS in exchange for 40 newly issued shares of FS. (ii)Analysis. FS has indirectly acquired substan- tially all the properties held directly or indirectly by USS pursuant to a plan. After the acquisition, B holds 60 percent of the outstanding shares of the FS stock. Accordingly, B, FS and USS are members of an EAG. After the acquisition, P does not hold directly or in- directly more than 50 percent of the stock (by vote or value) of any member of the EAG and, thus, the acquisition results in a loss of control described in paragraph (c)(3) of this section. Accordingly, under paragraph (c)(1) of this section, the FS stock owned by B is included in the denominator, but not in the numerator, of the ownership fraction. Therefore, the ownership fraction is 40/100. FS is not a surrogate foreign corporation. Example 8. Internal group restructuring; part- nership—(i)Facts. LLC, a Delaware limited liabil- ity company, is engaged in the conduct of a trade or business. P, a corporation, holds 90 percent of the in- terests of LLC. A, a person unrelated to P, holds 10 percent of the interests of LLC. LLC has not elected to be treated as an association taxable as a corpora- tion. P and A transfer their interests in LLC to FS, a newly formed foreign corporation, in exchange for 90 shares and 10 shares, respectively, of FS’s stock, which are all of the outstanding shares of FS. Accord- ingly, LLC becomes a disregarded entity. (ii)Analysis. Prior to the FS’s acquisition of the interests of LLC, LLC was a domestic partnership for Federal income tax purposes. FS has acquired substantially all the properties constituting a trade or business of LLC pursuant to a plan. After the acqui- sition, P holds 90 percent of FS’s stock (by vote and value) by reason of holding a capital and profits in- terest in LLC, and A holds 10 percent of FS’s stock (by vote and value) by reason of holding a capital and profits interest in LLC. The internal group restructur- ing exception under paragraph (c)(2) of this section applies, because before the acquisition, P held 80 per- cent or more of the capital and profits interest in LLC, and after the acquisition, P holds 80 percent or more of the stock (by vote and value) of FS. Under para- graph (c)(1) of this section, the FS stock held by P is included in the denominator, but not the numerator, of the ownership fraction. Accordingly, the owner- ship fraction is 10/100. FS is not a surrogate foreign corporation. (g)Effective/applicability date. Except as otherwise provided in this paragraph, this section shall apply to acquisitions completed on or after May 20, 2008. This section shall not, however, apply to an acquisition that was completed on or after May 20, 2008, provided such acquisition was entered into pursuant to a written agreement which was (subject to custom- ary conditions) binding prior to May 20, 2008, and at all times thereafter (binding commitment). For purposes of the pre- ceding sentence, a binding commitment shall include entering into options and similar interests in connection with one or more written agreements described in the preceding sentence. Notwithstanding the general application of this paragraph, taxpayers may elect to apply this section to prior acquisitions, but must apply it consistently to all acquisitions within its scope. LindaE.Stiff, Deputy Commissioner for Services and Enforcement. Approved May 8, 2008. Eric Solomon, Assistant Secretary of theTreasury(TaxPolicy). (Filed by the Office of the Federal Register on May 19, 2008, 8:45 a.m., and published in the issue of the Federal Register for May 20, 2008, 73 F.R. 29054) 2008–25 I.R.B.1162June 23, 2008 Part III. Administrative, Procedural, and Miscellaneous Health Savings Accounts Notice 2008–51 Section 307 of the Health Opportunity Patient Empowerment Act of 2006 (the Act) added § 408(d)(9) to the Internal Rev- enue Code. The Act is part of the Tax Re- lief and Health Care Act of 2006, enacted December 20, 2006, Pub. L. No. 109–432. This notice provides guidance on a quali- fied HSA funding distribution from an in- dividual’s Individual Retirement Account (IRA) or Roth IRA to a Health Savings Account (HSA). The qualified HSA fund- ing distribution is a one-time transfer from an individual’s IRA to his or her HSA and generally excluded from gross income and is not subject to the 10 percent additional taxunder§72(t). BACKGROUND Eligible individuals Generally, only eligible individuals (as defined in § 223(c)(1)) may contribute to HSAs. Maximum annual HSA contribu- tions are based on an individual’s eligibil- ity, age, and health plan coverage. General rules on taxation of distributions from IRAs A distribution from an IRA under § 408 generally is included in gross income. If an IRA owner made nondeductible contribu- tions to the IRA, those contributions are re- coveredonapro-ratabasis and the distri- bution is partly included in and partly ex- cluded from gross income under the rules of § 408(d) and § 72(e)(8). A nonqualified distribution from a Roth IRA under § 408A is included in gross in- come only to the extent that earnings are distributed. A qualified Roth IRA distribu- tion (as defined in § 408A(d)) is excluded from gross income. If a distribution from an IRA or Roth IRA is made before the IRA or Roth IRA account owner attains age 59½, the distri- bution also is subject to a 10 percent addi- tional tax under § 72(t) unless an exception applies. These exceptions include distri- butions made on account of death or dis- ability, and distributions made as part of a series of substantially equal periodic pay- ments for the life expectancy of the IRA holder. HEALTH OPPORTUNITY PATIENT EMPOWERMENT ACT OF 2006 Tax treatment of qualified HSA funding distributions Section 408(d)(9) provides, in general, that a qualified HSA funding distribution from an individual’s IRA or Roth IRA to that individual’s HSA is not included in gross income, if the individual is an eli- gible individual under § 223(c)(1). More- over, notwithstanding thepro-ratabasis recovery rules under § 72, for purposes of determining the basis in any amount re- maining in an IRA or Roth IRA follow- ing a qualified HSA funding distribution, the qualified HSA funding distribution is treated as included in gross income to the extent that such amount does not exceed the aggregate amount which would have been so included if there were a total distri- bution from the IRA or Roth IRA owner’s accounts. For example, suppose an indi- vidual who has $200 of basis in an IRA with a fair market value of $2,000 makes a qualified HSA funding distribution of $1,500 from the IRA. Immediately after the qualified HSA funding distribution, the individual retains $200 of basis in an IRA that has a fair market value of $500. If a qualified HSA funding distribution from an individual’s IRA or Roth IRA ex- ceeds the aggregate amount which would have been included in gross income if there were a total distribution from that indi- vidual’s IRA or Roth IRA accounts, the individual’s basis in the excess amount (i.e., the amount that would have been ex- cluded from gross income in a distribution to which § 408(d)(9) did not apply) does not carry over to the HSA. A qualified HSA funding distribution is not subject to the 10 percent additional tax under § 72(t). However, if the qual- ified HSA funding distribution results in a modification of a series of substantially equal periodic payments that, prior to the modification, qualify for the exception to the 10 percent additional tax under § 72(t)(2)(A)(iv), and such modification results in the imposition of the recapture tax under the rules of § 72(t)(4), the re- capture tax applies to the payments made before the date of the qualified HSA fund- ing distribution. The amount contributed to the HSA through a qualified HSA funding dis- tribution is not allowed as a deduction and counts against the individual’s max- imum annual HSA contribution for the taxable year of the distribution. In addi- tion, the taxability of these distributions is subject to the testing period rules in § 408(d)(9)(D), discussed below. Qualified HSA funding distribution only from certain types of IRAs A qualified HSA funding distribution may be made from a traditional IRA under § 408 or a Roth IRA under § 408A, but not from an ongoing SIMPLE IRA under § 408(p) or an ongoing SEP IRA under § 408(k). For this purpose, a SIMPLE IRA or SEP IRA is treated as ongoing if an employer contribution is made for the plan year ending with or within the IRA owner’s taxable year in which the qualified HSA funding distribution would be made. AfterthedeathofanIRAorRothIRA account owner, a qualified HSA funding distribution may be made from an IRA or Roth IRA maintained for the benefit of an IRA or Roth IRA beneficiary. This dis- tribution will be taken into account in de- termining whether the required minimum distribution requirements of §§ 408(a)(6), 408(b)(3), and 408A(c)(5) have been sat- isfied. Maximum amount of qualified HSA funding distribution For purposes of § 408(d)(9)(C)(i), a qualified HSA funding distribution from the IRA or Roth IRA of an eligible individ- ual to that individual’s HSA must be less than or equal to the IRA or Roth IRA ac- count owner’s maximum annual HSA con- tribution. The maximum annual HSA con- tribution is based on (1) the individual’s age as of the end of the taxable year and (2) the individual’s type of high deductible health plan (HDHP) coverage (self-only or family HDHP coverage) at the time of the distribution. For example, in 2008, an IRA owner who is an eligible individual with June 23, 200811632008–25 I.R.B. family HDHP coverage at the time of the distribution and who is age 55 or over by the end of the year is allowed a qualified HSA funding distribution of $5,800, plus the $900 catch-up contribution. An IRA or Roth IRA owner who is an eligible indi- vidual with self-only HDHP coverage, and who is under age 55 as of the end of the taxable year, is allowed a qualified HSA funding distribution of $2,900 for 2008. One-time qualified HSA funding distribution Generally, only one qualified HSA funding distribution is allowed during the lifetime of an individual. If, however, the distribution occurs when the individual has self-only HDHP coverage, and later in the same taxable year the individual has family HDHP coverage, the individual is allowed a second qualified HSA funding distribution in that taxable year. Both dis- tributions count against the individual’s maximum HSA contribution for that tax- able year. The distributions must be from an IRA or Roth IRA to an HSA owned by the individual who owns the IRA or Roth IRA or, in the case of an inherited IRA, for whom the IRA or Roth IRA is maintained (i.e., a qualified HSA funding distribution cannot be made to an HSA owned by any other person, including the individual’s spouse). IRA or Roth IRA owners are not required to make the maximum qualified HSA funding distribution or to make any qualified HSA funding distribution. If an individual owns two or more IRAs, and wants to use amounts in multi- ple IRAs to make a qualified HSA funding distribution, the individual must first make an IRA-to-IRA transfer of the amounts to be distributed into a single IRA, and then make the one-time qualified HSA funding distribution from that IRA. No deemed distribution date A qualified HSA funding distribution relates to the taxable year in which the dis- tribution is actually made. The rules in § 223(d)(4)(B) and § 219(f)(3) (contribu- tions made before the deadline for filing the individual’s federal income tax return are deemed to be made on the last day of the preceding taxable year) do not apply to qualified HSA funding distributions. Procedures for making the transfer from an IRA to an HSA An individual must be an eligible indi- vidual (as defined in § 223(c)(1)) at the time of the qualified HSA funding distri- bution. The distribution must be a direct transfer from an IRA or Roth IRA to an HSA. For example, if a check from an IRA or Roth IRA is made payable to an HSA trustee or custodian and delivered by the IRA or Roth IRA account owner to the HSA trustee or custodian, the payment to the HSA will be considered a direct pay- ment by the IRA or Roth IRA trustee, cus- todian or issuer to the HSA for purposes of § 408(d)(9). Testing period rules If a qualified HSA funding distribu- tion is made from the individual’s IRA or Roth IRA to the individual’s HSA under § 408(d)(9) and the individual remains an eligible individual during the entire testing period, the amount of the qualified HSA funding distribution is excluded from the individual’s gross income and the 10 per- cent additional tax under § 408(d)(9)(D) does not apply. The testing period begins with the month in which the qualified HSA funding distribution is contributed to the HSA and ends on the last day of the 12 th month following that month. Each qual- ified HSA funding distribution allowed in § 408(d)(9)(C)(ii)(II) has a separate testing period. For testing period purposes, an eli- gible individual who changes from family HDHP coverage to self-only HDHP cov- erage during the testing period remains an eligible individual. If at any time during the testing period the individual ceases to meet all requirements to be an eligible in- dividual, the amount of the qualified HSA funding distribution is included in the indi- vidual’s gross income. The qualified HSA funding distribution is included in gross in- come in the taxable year of the individual in which the individual first fails to be an eligible individual. This amount is subject to the 10 percent additional tax (unless the failure is due to disability, as defined in § 72(m)(7), or death). See § 408(d)(9)(D). Earnings on the amount of the qualified HSA funding distribution are not included in gross income. Amounts included in the IRA or Roth IRA owner’s gross income under § 408(d)(9)(D) are not also included in gross income under §§ 408(d)(1) or (2), nordothe§72rulesapply(includingthe additional tax under § 72(t)). No interaction between testing periods Section 223(b)(8)(B) provides gener- ally that if an individual fails to remain an eligible individual during the § 223(b)(8) testing period, an amount is included in the individual’s gross income (computed by subtracting the sum of the monthly contribution limits that the individual would otherwise have been entitled to un- der §§ 223(b)(1) and (2) from the amount actually contributed). The testing period rules in § 223(b)(8)(B) do not apply to amounts contributed to an HSA through a qualified HSA funding distribution. Thus, if an individual remains an eligible indi- vidual during the entire § 408(d)(9) testing period, then no amount of the qualified HSA funding distribution is included in income and the 10 percent additional tax under § 223(b)(8)(B) does not apply. Application of § 223(b)(8)(B) testing period to contributions which are not qualified HSA funding distributions If an HSA account beneficiary’s con- tributions to his or her HSA in a taxable year include both a qualified HSA funding distribution (or distributions) and other contributions subject to § 223(b)(8), the § 408(d)(9)(D) testing period rules apply to the qualified HSA funding distribution (or distributions) and the § 223(b)(8)(B) testing period rules apply to the other contributions. If the individual fails to remain an eligible individual during the § 223(b)(8)(B) testing period, but does remain a qualified individual during the § 408(d)(9)(D) testing period, the amount included in the individual’s gross income is the lesser of: (1) the amount that would otherwise be included under the § 223(b)(8)(B) rules; or (2) the amount of contributions to the HSA for the taxable year other than the amount contributed through qualified HSA funding distributions. HSA distributions not used for qualified medical expenses An HSA distribution not used for qual- ified medical expenses (as defined in § 223(d)(2)) is included in gross income 2008–25 I.R.B.1164June 23, 2008 under § 223(f)(2) and subject to the 10 percent additional tax under § 223(f)(4) (with certain exceptions), regardless of whether the amount contributed to the HSA under the qualified HSA funding distribution is included in the account beneficiary’s income and subject to the additional tax under § 408(d)(9)(D). See Notice 2007–22, 2007–10 I.R.B. 670, re- garding the consequences of distributions from HSAs. EXAMPLES The following examples illustrate these rules. It is assumed in the examples that no previous qualified HSA funding distri- butions have been made by the individual, and that all distributions are from IRAs and are otherwise included in the IRA owner’s gross income. None of the IRAs are on- going SEP IRAs described in § 408(k), or ongoing SIMPLE IRAs described in § 408(p). For purposes of § 223(f)(4) and § 408(d)(9)(D)(ii), none of the IRA owners or HSA account beneficiaries are disabled. None of the exceptions to the 10 percent tax under § 72(t) apply. Example 1. Individual A, age 45, enrolls in fam- ily HDHP coverage on January 1, 2008, is otherwise an eligible individual (as defined in § 223(c)(1)) as of that date and through December 31, 2009. A’s max- imum annual HSA contribution for 2008 is $5,800. A owns an IRA with a balance of $2,000. A direct trustee-to-trustee transfer of $2,000 is made from A’s IRA trustee to A’s HSA trustee on April 2, 2008. The $2,000 distribution is a qualified HSA fund- ing distribution, and accordingly is not included in A’s gross income and is not subject to the additional tax under § 72(t). A’s testing period with respect to the qualified HSA funding distribution begins in April 2008 and ends on April 30, 2009. After the qualified HSA funding distribution of $2,000, $3,800 of A’s 2008 HSA maximum annual contribution re- mains. Example 2. Same facts asExample 1, except that A ceases to be an eligible individual on January 1, 2009. Under § 408(d)(9)(D), in 2009 A must include $2,000 in gross income, the amount of the qualified HSA funding distribution, plus an additional tax of $200 (10 percent of the amount included in income). Example 3. Individual B, age 57, enrolls in self- only HDHP coverage effective January 1, 2008, is otherwise an eligible individual as of that date and through December 31, 2009. B’s maximum annual HSA contribution for 2008 is $3,800 ($2,900 plus the $900 catch-up contribution). B owns an IRA with a balance of $13,550. A directtrustee-to-trustee trans- fer of $3,800 is made from B’s IRA trustee to B’s HSA trustee on June 4, 2008. The $3,800 distribution is a qualified HSA fund- ing distribution. The distribution from B’s IRA is not included in B’s gross income and is not subject to the additional tax under § 72(t). The qualified HSA fund- ing distribution of $3,800 equals B’s 2008 maximum annual HSA contribution. B’s testing period with re- spect to the qualified HSA funding distribution be- gins in June 2008 and ends on June 30, 2009. Example 4. Individual C, age 38, enrolls in self- only HDHP coverage on January 1, 2008, is other- wise an eligible individual on January 1, and remains an eligible individual through December 31, 2009. C owns an IRA with a balance of $12,550. A qualified HSA funding distribution of $2,800 is made from C’s IRA trustee directly to C’s HSA trustee on June 4, 2008. On August 1, C enrolls in family HDHP coverage. A transfer of $3,000 is made from C’s IRA trustee directly to C’s HSA trustee on August 15, 2008. The $2,800 and $3,000 distributions are qualified HSA funding distributions. The distributions from the IRA are not included in C’s gross income and are not subject to the additional tax under § 72(t). The qualified HSA funding distributions of $5,800 ($2,800 + $3,000) equal C’s 2008 maximum annual HSA contribution. C’s testing period for the first qualified HSA funding distribution begins in June 2008 and ends on June 30, 2009 and the testing period for the second qualified HSA funding distribution be- gins in August 2008 and ends on August 31, 2009. Example 5. Individual D, age 43, enrolls in fam- ily HDHP coverage on January 1, 2008, is otherwise an eligible individual on January 1, and remains an eligible individual through December 31, 2009. D owns an IRA with a balance of $17,500. A qualified HSA funding distribution of $5,800 is made from D’s IRA trustee directly to D’s HSA trustee on March 18, 2008. On June 1, D changes from family HDHP cov- erage to self-only HDHP coverage. The $5,800 dis- tribution from the IRA is not included in D’s gross income and is not subject to the additional tax un- der § 72(t). The qualified HSA funding distribution of $5,800 equals D’s maximum annual HSA contri- bution at the time the transfer occurred. D’s testing period begins in March 2008 and ends on March 31, 2009. Example 6. Individual E, age 50, begins fam- ily HDHP coverage and is first an eligible individual on June 1, 2008. E owns an IRA with a balance of $20,000. A direct trustee-to-trustee transfer of $3,500 is made from E’s IRA trustee to E’s HSA trustee on June 4, 2008. On June 4, 2008 E also contributes $2,300 in cash to his HSA for a total contribution of $5,800. On July 1, 2009, E ceases to be an eligible individual. The $3,500 distribution is a qualified HSA fund- ing distribution, is not included in E’s gross income, and is not subject to the additional tax under § 72(t). E’s testing period with respect to the qualified HSA funding distribution begins in June 2008 and ends on June 30, 2009. E remains an eligible individual dur- ing the qualified HSA funding distribution testing pe- riod. No amount of the $3,500 distribution is included in E’s gross income. The testing period for the $2,300 contribution be- gins in December 2008 and ends on December 31, 2009. E’s full contribution limit under § 223(b)(8) for 2008 is $5,800. E’s sum of the monthly contribu- tion limits is $3,383 (7/12 x $5,800). E’s maximum annual contribution for 2008 is $5,800, the greater of $5,800 or $3,383. The amount included in E’s gross income and subject to the 10 percent additional tax under § 223(b)(8)(B) in 2009 is $2,417 ($5,800 - $3,383). The cash contribution to E’s HSA is $2,300. The amount included in E’s gross income and subject to additional tax is $2,300, the lesser of $2,417 or $2,300. Example 7. Same facts asExample 6, except that the distribution from E’s IRA to E’s HSA is $1,000 and E contributes $4,800 in cash for a total HSA con- tribution of $5,800 in 2008. E remains an eligible individual during the qual- ified HSA funding distribution testing period. No amount of the $1,000 distribution is included in E’s gross income. E’s full contribution limit under § 223(b)(8) for 2008 is $5,800. E’s sum of the monthly contribution limits is $3,383 (7/12 x $5,800). E’s maximum an- nual contribution limit for 2008 is $5,800, the greater of $5,800 or $3,383. The amount included in E’s gross income and subject to the 10 percent additional tax under § 223(b)(8)(B) is $2,417 ($5,800 - $3,383). The cash contribution to E’s HSA is $4,800. The amount included in E’s gross income and subject to the additional tax in 2009 is $2,417, the lesser of $2,417 or $4,800. Example 8. Same facts asExample 6, except that E ceases to be an eligible individual on May 1, 2009. The $3,500 distribution is a qualified HSA fund- ing distribution, is not included in E’s gross income in the year of the distribution, and is not subject to the additional tax under § 72(t). E’s testing period with respect to the qualified HSA funding distribu- tion begins in June 2008 and ends on June 30, 2009. E ceases to be an eligible individual during the qual- ified HSA funding distribution testing period. The $3,500 distribution is included in E’s gross income. In addition, the 10 percent additional tax ($350) un- der § 408(d)(9)(D)(II) applies to the amount. The testing period for the $2,300 contribution be- gins in December 2008 and ends on December 31, 2009. E’s full contribution limit under § 223(b)(8) for 2008 is $5,800. E’s sum of the monthly contribution limits is $3,383 (7/12 x $5,800). E’s maximum an- nual contribution limit for 2008 is $5,800, the greater of $5,800 or $3,383. The amount included in E’s gross income and subject to the 10 percent additional tax in 2009 un- der § 223(b)(8) is $2,417 ($5,800 - $3,383). The cash contribution to E’s HSA is $2,300. The amount in- cluded in E’s gross income and subject to additional tax is $2,300, the lesser of $2,417 or $2,300. Example 9. Individual F, age 47, has family HDHP coverage and is first an eligible individual on January 1, 2008. F’s maximum annual HSA contribution for 2008 is $5,800. F owns an IRA with a balance of $10,000. A direct trustee-to-trustee transfer of $10,000 is made from F’s IRA trustee to F’s HSA trustee on September 26, 2008. The $10,000 contribution exceeds F’s $5,800 contribution limit. In 2008, $4,200 ($10,000 - $5,800) is included in F’s gross income under § 408 as a taxable IRA distribution. The $4,200 is also subject to additional tax under § 72(t), as well as an excise tax on excess HSA contributions under § 4973. Example 10. Individual G, age 32, has self-only HDHP coverage and is first an eligible individual on January 1, 2007. G remains an eligible individual June 23, 200811652008–25 I.R.B. through December 31, 2009. G’s maximum annual HSA contribution for 2007 is $2,850 and $2,900 for 2008. G owns an IRA with a balance of $4,500. A direct trustee-to-trustee transfer of $1,000 from G’s IRA trustee to G’s HSA trustee is made on September 6, 2007. Another direct trustee-to-trustee transfer of $1,500 from G’s IRA trustee to G’s HSA trustee is made on April 28, 2008. G makes no other contribu- tions to his HSA for 2008. The$1,000contributiontoG’sHSAinSeptember 2007 is a qualified HSA funding distribution, is not included in G’s gross income, and is not subject to the additional tax under § 72(t). G’s testing period with respect to this contribution begins in September 2007 and ends on September 30, 2008. The $1,500 contribution to G’s HSA in April 2008 is not a qualified HSA funding distribution, is in- cluded in G’s gross income for 2008 under § 408 as a taxable IRA distribution, and is subject to the ad- ditional tax under § 72(t). However, the $1,500 con- tribution to G’s HSA is allowed as a deduction under § 223(a) in 2008, because G remains an eligible indi- vidual in 2008 and has not otherwise made contribu- tions to the HSA or had contributions on G’s behalf made to an HSA in excess of $1,400 for 2008. No testing period under § 408 applies to the $1,500 con- tribution. REPORTING AND WITHHOLDING Employers are not responsible for re- porting whether an employee remains an eligible individual during the testing pe- riod. A qualified HSA funding distribution is not subject to withholding under § 3405 because an IRA or Roth IRA owner that requests such a distribution is deemed to have elected out of withholding under § 3405(a)(2). For purposes of determin- ing whether a distribution requested by an IRA or Roth IRA owner satisfies the requirements of § 408(d)(9), the IRA or Roth IRA trustee may rely upon reason- able representations made by the account owner. EFFECTIVE DATE Sections 408(d)(9) and 223(b)(4)(C), allowing qualified HSA funding distribu- tions from IRAs to HSAs, are effective for taxable years beginning after December 31, 2006. DRAFTING INFORMATION The principal author of this notice is Leslie R. Paul of the Office of Division Counsel/Associate Chief Counsel (Tax Ex- empt and Government Entities). For fur- ther information regarding this notice, con- tact Ms. Paul at (202) 622–6080 (not a toll-free call). For information regard- ing the rules applicable to IRAs, contact Cathy V. Pastor at (202) 622–6090 (not a toll-free call). Health Savings Accounts Notice 2008–52 This notice provides guidance on con- tributions to Health Savings Accounts (HSAs) under amendments to the Internal Revenue Code by §§ 303 and 305 of the Health Opportunity Patient Empowerment Act of 2006 (the Act) included in the Tax Relief and Health Care Act of 2006, en- acted December 20, 2006, Pub. L. No. 109–432. ANNUAL HSA CONTRIBUTION LIMIT HDHP deductible limit on annual HSA contributions repealed For 2004 through 2006, the maximum annual HSA contribution was the lesser of (1) the annual deductible under the high deductible health plan (HDHP) or (2) the statutory maximum under § 223(b)(2)(B). See Notice 2004–2, 2004–1 C.B. 269, Q&A–12. Section 303 of the Act repeals the limit on annual HSA contributions based on the amount of the deductible under the HDHP. For 2007 and later years, the indexed maximum HSA contribution under § 223(b)(2)(A) (for self-only HDHP coverage) and § 223(b)(2)(B) (for family HDHP coverage) determines the contribu- tion limit, without regard to an individual’s HDHP deductible. Thus, for 2008, the maximum annual HSA contribution is $2,900 for individuals who have self-only HDHP coverage and $5,800 for individu- als who have family HDHP coverage. Annual HSA contribution limits for 2007 and later years Section 305 of the Act adds § 223(b)(8), which provides that if an individual is an eligible individual on the first day of the last month of the individual’s taxable year (December 1 for calendar year taxpayers), the individual’s maximum HSA contribu- tion for the year is the greater of the fol- lowing: (1) The sum of the limits deter- mined separately for each month under § 223(b)(2), based on eligibility and HDHP coverage on the first day of each month, plus catch-up contributions for each month, if applicable (see sum of the monthly contribution limits discus- sion below), or (2) The maximum annual HSA contribution under § 223(b)(2)(A) or § 223(b)(2)(B) based on the individ- ual’s HDHP coverage (self-only or family) on the first day of the last month of the individual’s taxable year, plus catch-up contributions un- der § 223(b)(3), if applicable (see full contribution rule under § 223(b)(8) dis- cussion below). A testing period applies to the full contri- bution rule (see discussion of the testing period below). If an individual is not an eligible individual on the first day of the last month of the individual’s taxable year (December 1 for calendar year taxpayers), the individual’s maximum HSA contribu- tion for the year is determined under the sum of the monthly contribution limits rule under § 223(b)(2). See Example 6 below. Sum of the monthly contribution limits Eligible individuals (as defined in § 223(c)(1)) may contribute to HSAs. See Notice 2004–2, Q&A–2; Notice 2004–50, 2004–2 C.B. 196, Q&A–2, 3. Under §§ 223(b)(1) and (2), the maximum annual contribution to an HSA is the sum of the monthly contribution limits determined separately for each month, based on eli- gibility and health plan coverage on the first day of the month. For this purpose, the monthly limit is 1/12 of the indexed amount provided under § 223(b)(2)(A) for self-only coverage ($2,900 for 2008) and under § 223(b)(2)(B) for family coverage ($5,800 for 2008). In addition, the maxi- mum HSA contribution is increased by an additional contribution amount (catch-up amount) for individuals age 55 or older as of the last day of the calendar year who are not enrolled in Medicare. The catch-up contribution is also computed on a monthly basis. Section 223(b)(2). Full contribution rule New § 223(b)(8)(A) treats an individ- ual who is an eligible individual on the first day of the last month of the taxable year as 2008–25 I.R.B.1166June 23, 2008 having been an eligible individual for the entire year and may increase, but not de- crease, the contribution limit for such an individual. Thus, in order to make a full contribution for the year under § 223(b)(8), a taxpayer must be an eligible individual on the first day of the last month of his or her taxable year (December 1 for calendar year taxpayers). The eligible individual is also treated as enrolled in the same HDHP coverage (i.e., self-only or family cover- age) as he or she has on the first day of the last month of the year. For example, if an individual first becomes HSA-eligible on December 1, 2008, and has family HDHP coverage, he or she is treated as an eligi- ble individual and having family HDHP coverage for all twelve months in 2008. This full contribution rule also applies to catch-up contributions. The full contribu- tion rule applies without regard to whether the individual was an eligible individual for the entire year, had HDHP coverage for the entire year, or had disqualifying non-HDHP coverage for part of the year. However, a testing period applies for pur- poses of the full contribution rule. The testing period Thetestingperiodappliestoanindivid- ual who is an eligible individual on the first day of the last month of the taxable year. The testing period begins on the first day of the last month of the taxable year and ends on the last day of the 12 th month following that month. Thus, for a calendar year tax- payer, the testing period is from December 1 of the current year to December 31 of the following year. Section 223(b)(8)(B)(iii). For 2008 HSA contributions, the testing period for calendar year taxpayers begins on December 1, 2008 and ends on Decem- ber 31, 2009. Failure to remain an eligible individual during the testing period If an individual who is an eligible in- dividual on the first day of the last month of the taxable year contributes an amount to his or her HSA greater than the sum of the monthly contribution limits under §§ 223(b)(1) and (2), and at any time dur- ing the testing period the individual ceases to meet all requirements to be an eligi- ble individual, an amount is included in the individual’s gross income and subject to an additional 10 percent tax, unless the failure is due to disability (as defined in § 72(m)(7)) or death. The amount that is included in the in- dividual’s gross income is computed by subtracting the sum of the monthly con- tribution limits that the individual would otherwise have been entitled to under §§ 223(b)(1) and (2) from the amount ac- tually contributed. Section 223(b)(8)(B). It is not necessary to distribute this amount from the HSA, and there may be additional adverse tax consequences from such a distribution. See discussion below on dis- tributions not used for qualified medical expenses. Withdrawing this amount from the HSA will not prevent the inclusion of the amount in income or the additional 10 percent tax. However, earnings on the amount are not included in gross income or subject to the 10 percent additional tax, so long as the earnings remain in the HSA or are used for qualified medical expenses. Unlike the additional 10 percent tax un- der § 223(f)(4)(A), the additional 10 per- cent tax under § 223(b)(8)(B)(i)(II) applies regardless of the age of the account bene- ficiary (i.e., even after age 65). To remain an eligible individual during the testing period, an individual is not required to keep the same level of HDHP coverage during the testing period. Thus, changing from family HDHP coverage to single HDHP coverage during the test- ing period does not result in inclusion of amounts in gross income or an additional 10 percent tax. See Examples 8 and 14 below. Excise tax on excess contributions Section 4973 imposes a six percent ex- cise tax for each taxable year on HSA con- tributions in excess of the maximum con- tribution limit for the year (excess contri- butions). If the excess contributions for the year and the net income attributable to such excess contributions are withdrawn from the HSA before the last day (with ex- tensions) for filing the federal income tax return for the taxable year, the amount is not subject to the excise tax for that year. However, an amount included in gross in- come under § 223(b)(8)(B) because an in- dividual failed to remain an eligible indi- vidual during the testing period is not an excess contribution and § 4973 does not apply to this amount. For this reason, the amount cannot be withdrawn under the ex- cess contribution rules. HSA distributions not used for qualified medical expenses An HSA distribution not used for qual- ified medical expenses (as defined in § 223(d)(2)) is included in gross income under § 223(f)(2) and is subject to the ad- ditional 10 percent tax under § 223(f)(4) (with certain exceptions), regardless of whether the amount contributed to the HSA under the full contribution rule is in- cluded in the account beneficiary’s income and subject to the additional tax under § 223(b)(8)(B)(i). See Notice 2007–22, 2007–10 I.R.B. 670, regarding conse- quences of distributions from HSAs. See Example 9 below. Establishing HSAs AnindividualmayestablishanHSA at any time on or after the date the indi- vidual becomes HSA-eligible. Contribu- tions for the taxable year can be made in one or more payments, at any time prior to the time (without extensions) for filing the individual’s federal income tax return for the taxable year. An individual who becomes an eligible individual after Jan- uary 1 may make the maximum contribu- tion to an HSA on the first day he or she is an eligible individual. Notice 2004–2, Q&A–21. In that case, the individual’s contribution is based on the individual’s expected coverage on the first day of the last month of his or her taxable year. But see testing period rules above. EXAMPLES The following examples illustrate these rules. It is assumed in the examples that the taxable year of all individuals is the calendar year, and that, for purposes of § 223(b)(8)(B)(ii), no individuals are dis- abled within the meaning of § 72(m)(7) un- less otherwise stated. Example 1. Individual A, age 53, enrolls in family HDHP coverage on December 1, 2008 and is other- wise an eligible individual on that date. A is not an eligible individual in any other month in 2008. A is an eligible individual with family HDHP coverage on December 1, 2008. A’s full contribution limit under § 223(b)(8) for 2008 is $5,800. The sum of the monthly contribution limits is $483.33 (1/12 x $5,800). A’s annual contribution limit for 2008 is $5,800, the greater of $5,800 or $483.33 June 23, 200811672008–25 I.R.B. Example 2. Same facts asExample 1, except that A contributes $5,800 to his HSA on December 1, 2008 and ceases to be an eligible individual in June 2009. The testing period for 2008 HSA contributions ends on December 31, 2009. In 2009, A ceases to be an eligible individual during the testing period. In 2009, A must include in gross income $5,316.67, the amount contributed to the HSA for 2008 minus the sum of the monthly contribution limits ($5,800.00 - $483.33). In addition, the 10 percent additional tax ($531.67) in § 223(b)(8)(B)(i) applies to the amount included in gross income. Example 3. Individual B, age 39, enrolls in self- only HDHP coverage on January 1, 2008 and is an eligible individual on that date. B’s coverage changes to family HDHP coverage on November 1, 2008 and B retains family HDHP coverage through December 31, 2008. B is an eligible individual from January 1, 2008 through December 31, 2008 and remains an eligible individual through December 31, 2009. B is an eligible individual with family HDHP cov- erage on December 1, 2008. B’s full contribution limit under § 223(b)(8) for 2008 is $5,800. B’s sum of the monthly contribution limits is $3,383.34 ((2/12 x $5,800) + (10/12 x $2,900)). B’s annual contribu- tion limit for 2008 is $5,800, the greater of $5,800 or $3,383.34. Example 4. In 2007, Individual C, age 47, is cov- ered by a general purpose health FSA with a grace period ending March 15, 2008. C enrolls in family HDHP coverage on January 1, 2008. C becomes an eligible individual on April 1, 2008 and remains an eligible individual through December 31, 2009. On April 2, 2008, C contributes $5,800 to his HSA for 2008. C is an eligible individual with family HDHP cov- erage on December 1, 2008. C’s full contribution limit under § 223(b)(8) for 2008 is $5,800. C’s sum of the monthly contribution limits is $4,350 (9/12 x $5,800). C’s annual contribution limit for 2008 is $5,800, the greater of $5,800 or $4,350. The testing period for 2008 ends on December 31, 2009. Because C is an eligible individual during the testing period, no amount of the $5,800 contribution is included in C’s gross income and C is not subject to the 10 per- cent additional tax. Example 5. Individual D, age 57, enrolls in fam- ily HDHP coverage on December 1, 2008 and is an eligible individual on that date. D was not an eligible individual in any other month in 2008. D contributes $6,700 to his HSA on December 1, 2008 and remains an eligible individual through December 31, 2009. D is an eligible individual with family HDHP coverage on December 1, 2008 and remains an el- igible individual through December 31, 2009. D’s full contribution limit under § 223(b)(8) for 2008 is $6,700 ($5,800 family coverage contribution + $900 catch-up contribution). The sum of the monthly con- tribution limits is $558.33 ((1/12 x $5,800) + (1/12 x $900)). D’s annual contribution limit for 2008 is $6,700, the greater of $6,700 or $558.33. Example 6. Individual E, age 35, has self-only HDHP coverage and is an eligible individual for the months of May, June, and July 2008. The full contribution limit under § 223(b)(8) does not apply to E for 2008 because E is not an eligible individual on December 1, 2008. E’s contribution limit for 2008 is $725 (3/12 x $2,900). Example 7. Individual F, age 46, enrolls in fam- ily HDHP coverage on January 1, 2008 and is an el- igible individual on that date. F contributes $5,800 to an HSA on January 1, 2008. F ceases to be cov- ered by an HDHP on August 1, 2008. On Decem- ber 15, 2008, F withdraws from the HSA $2,416.67 ($5,800.00 - $3,383.33), plus $45 earnings attribut- able to the $2,416.67. F ceases to be an eligible individual on August 1, 2008. The full contribution limit does not apply to F for 2008 because F is not an eligible individ- ual on December 1, 2008, and the testing period in § 223(b)(8)(B)(i) does not apply to F. F’s HSA con- tribution limit for 2008 is $3,383.33 (7/12 x $5,800). The $2,416.67 is an excess contribution for purposes of § 4973, but is not subject to the six percent excise tax under § 4973 because F withdrew the excess con- tribution and earnings attributable to the excess con- tribution by the due date, with extensions, for filing her 2008 federal income tax return. F reports the $45 withdrawn earnings as gross income on her 2008 fed- eral income tax return. The gross income inclusion and 10 percent tax in § 223(f)(3) for distributions not used for qualified medicalexpenses in § 223(f)(2) do not apply because F withdrew an excess contribution. Example 8. Individual G, age 38, enrolls in family HDHP coverage on January 1, 2008 and is an eligi- ble individual on that date. G’s coverage changes to self-only HDHP coverage on September 1, 2008 and he retains that coverage through December 31, 2008. G is an eligible individual for all 12 months in 2008. G contributes $4,833.33 ((8/12 x $5,800) + (4/12 x $2,900)) to an HSA for 2008. G ceases to be an eli- gible individual on January 1, 2009. G is an eligible individual with self-only HDHP coverage on December 1, 2008. G’s full contribution limit under § 223(b)(8) for 2008 is $2,900. G’s sum of the monthly contribution limits is $4,833.33 ((8/12 x $5,800) + (4/12 x $2,900)). G’s annual contribution limit is $4,833.33, the greater of $2,900 or $4,833.33. The testing period for 2008 HSA contributions ends on December 31, 2009. G ceases to be an eligible in- dividual during the testing period. Because G’s con- tribution of $4,833.33 is not greater than the sum of the monthly contribution limits, there is no inclusion or additional tax when G ceases to be an eligible in- dividual during the testing period. Example 9. Individual H, age 25, enrolls in self- only HDHP coverage on June 1, 2008 and is an eligi- ble individual on that date. H is not an eligible indi- vidual prior to June 1, 2008. H contributes $2,900 to an HSA on July 1, 2008. H is an eligible individual on December 1, 2008, and continues to be an eligi- ble individual until February 1, 2009. On February 2, 2009, H withdraws $1,208.33 from his HSA. The $1,208.33 distribution is not used for H’s qualified medical expenses (as defined in § 223(d)(2)). H is an eligible individual with self-only HDHP coverage on December 1, 2008. H’s full contribution limit under § 223(b)(8) for 2008 is $2,900. H’s sum of the monthly contribution limits is $1,691.67 (7/12 x $2,900). H’s annual contribution limit is $2,900, the greater of $2,900 or $1,691.67. The testing period for 2008 HSA contributions ends on December 31, 2009. In 2009, H ceases to be an eligible individual during the testing period. In 2009, H must include in gross income $1,208.33, the amount contributed to the HSA minus the sum of the monthly contribution limits ($2,900.00 - $1,691.67). In addition, the 10 percent additional tax ($120.83) in § 223(b)(8)(B)(i) applies to the amount. The $1,208.33 withdrawn from the HSA is not used for qualified medical expenses and is not a withdrawal of an excess contribution. Therefore, under § 223(f)(2), $1,208.33 is also included in H’s gross income and is also subject to the 10 percent additional tax in § 223(f)(4). As a result, H includes $2,416.66 ($1,208.33 with respect to § 223(f)(4) and $1,208.33 with respect to § 223(b)(8)) in gross income in 2009 and an additional tax of $241.66 ($120.83 with respect to § 223(f)(4) and $120.83 with respect to § 223(b)(8)). Example 10. Individual J, age 27, is eligible for medical benefits through the Department of Veterans Affairs (VA). As a result of medical care (other than disregarded coverage or preventive care) that J re- ceived from the VA in January 2008, he is not an eligi- ble individual in January, February, March, or April 2008. J has self-only HDHP coverage and is other- wise an eligible individual from May 1, 2008 through December 31, 2009. J is an eligible individual with self-only HDHP coverage on December 1, 2008. J’s full contribution limit under § 223(b)(8) for 2008 is $2,900. J’s sum of the monthly contribution limits is $1,933.33 (8/12 x $2,900). J’s annual contribution limit for 2008 is $2,900, the greater of $2,900 or $1,933.33. Example 11. Same facts asExample 10, except that J also receives medical care (other than disre- garded coverage or preventive care) from the VA in October 2008. J is an eligible individual with self-onlyHDHPcoverageinMaythroughSeptember 2008. The full contribution limit does not apply to J for 2008 because J is not an eligible individual on De- cember 1, 2008. J’s 2008 contribution limit is deter- mined under the sum of the monthly contribution lim- its and is $1,208.33 (5/12 x $2,900). Example 12. Individual K, age 64, enrolls in fam- ily HDHP coverage on April 1, 2008 and is an eligible individual from April 1, 2008 through December 31, 2008. K was not an eligible individual prior to April 1, 2008. K contributes $6,700 to his HSA for 2008 on April 1, 2008. K attains age 65 and enrolls in Medi- care on March 24, 2009 and ceases to be an eligible individual. K is an eligible individual with family HDHP coverage on December 1, 2008. K’s full contribution limit under § 223(b)(8) for 2008 is $6,700 ($5,800 family coverage contribution + $900 catch-up contri- bution). K’s sum of the monthly contribution limits is $5,025 ((9/12 x $5,800) + (9/12 x $900)). K’s annual contribution limit for 2008 is $6,700, the greater of $6,700 or $5,025. The testing period for 2008 HSA contributions ends on December 31, 2009. In 2009, K ceases to be an eligible individual during the testing period. In 2009, K must include $1,675, the amount contributed to the HSA minus the sum of the monthly contribution limits ($6,700.00 - $5,025.00) in gross income. In addition, the 10 percent additional tax ($167.50) in § 223(b)(8)(B)(i) applies to the amount. Example 13.Same facts asExample 12, except that before enrolling in Medicare, K ceases to be an eligible individual during the testing period as a re- sult of becoming disabled. Because K ceases to be an eligible individual due to becoming disabled, no amount is required to be included in income in 2009 or is subject to the additional tax in § 223(b)(8). 2008–25 I.R.B.1168June 23, 2008 Example 14. Individuals L and M, both age 40, are a married couple. L and M enroll in family HDHP coverage on December 1, 2008 and are otherwise el- igible individuals on that date. L and M are not eligi- ble individuals in any other month in 2008. L and M divide the contribution limit equally between them. On or after December 1, 2008, L contributes $2,900 to his HSA and M contributes $2,900 to her HSA. On June 1, 2009, M switches to self-only HDHP cover- age and remains an eligible individual through De- cember 31, 2009. L ceases to be an eligible individ- ual in June 2009. L and M are eligible individuals with family HDHP coverage on December 1, 2008. L and M’s combined full contribution limit for 2008 is $5,800. L and M’s combined sum of the monthly contribution limits is $483.33 (1/12 x $5,800), or $241.67 each ((1/12 x $5,800)/2). L and M’s combined annual contribution limit under § 223(b)(8) is $5,800, the greater of $5,800 or $483.33. The testing period for 2008 HSA contributions ends on December 31, 2009. During the testing period for 2008, M remains an eligible individual but L ceases to be an eligi- ble individual. Because M is an eligible individual during the testing period, no amount of M’s $2,900 contribution is included in M’s gross income and M is not subject to the 10 percent additional tax. In 2008, L must include $2,658.33 in gross income, the amount contributed to the HSA minus the sum of the monthly contribution limits ($2,900 - $241.67). In addition, the 10 percent additional tax ($265.83) in § 223(b)(8)(B)(i) applies to that amount. Example 15. Same facts asExample 14, except M contributes $5,800 to M’s HSA and L contributes $0 to L’s HSA. No amount is taxable to either L or M. NO EFFECT ON HSA ESTABLISHMENT DATE Expenses incurred before an HSA is established are not qualified medical ex- penses. Notice 2004–2, Q&A–26. Al- though § 223(b)(8) and this notice provide that certain individuals are treated as el- igible individuals on the first day of the taxable year in determining the contribu- tion amount, an HSA is not established be- fore the date that the HSA is actually estab- lished. See also Notice 2007–22, 2007–10 I.R.B. 670. REPORTING Neither employers nor trustees are re- sponsible for reporting whether an individ- ual remains an eligible individual during the testing period. EFFECTIVE DATE Sections 223(b)(2)(A) and (B) and § 223(b)(8), allowing full contributions for months preceding the month that an individual is an eligible individual, are effective for taxable years beginning after December 31, 2006. INTERACTION WITH § 408(d)(9) See Notice 2008–51, also published in 2008–25 I.R.B. EFFECT ON OTHER DOCUMENTS Notice 2004–2 and Notice 2004–50 are modified. DRAFTING INFORMATION The principal author of this notice is Leslie R. Paul of the Office of Division Counsel/Associate Chief Counsel (Tax Ex- empt and Government Entities). For fur- ther information regarding this notice, con- tact Ms. Paul at (202) 622–6080 (not a toll-free call). June 23, 200811692008–25 I.R.B. Part IV. Items o fGeneralInterest Notice of Prop osed Rulemaking an dNoticeof Public Hearin g Declaratory J udgments — Gift Tax Determin ations REG–143716–04 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Noti ce of proposed rulemaking and notice o f public hearing. SUMMARY: This document contains pro- posed regulations under section 7477 of the Internal Revenue Code (Code) regard- ing petitions filed with the United States Tax Court for declaratory judgments as to the valuation of gifts. Changes to the applicable law were made by section 506(c)(1) of the Taxpayer Relief Act of 1997 (TRA). The proposed regulations pri- marily affect individuals who are donors of gifts. The proposed regulations provide rules for determining whether a donor may petition the Tax Court with respect to the value of a gift, including guidance regarding the definition of “exhaustion of administrative remedies.” This document also provides a notice of a public hearing on these proposed regulations. DATES: Written and electronic comments must be received by September 8, 2008. Outlines of topics to be discussed at the public hearing scheduled for October 16, 2008, must be received by September 11, 2008. ADDRES SES: Send submissions to: CC:PA: LPD:PR (REG–143716–04), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washing- ton, D C 20044. Submissions may be hand d elivered Monday through Friday betwe en the hours of 8 a.m. and 4 p.m. to: C C:PA:LPD:PR (REG–143716–04), Cour ier’s Desk, Internal Revenue Serv ice, 1111 Constitution Avenue, NW, W ashington, DC. Alternatively, taxp ayers may submit electronic com ments via the Federal eRulemaking Por tal atwww.regulations.gov(IRS REG–143716–0 4). The public hearing will be held in the auditorium of the Internal R evenue Building, 1111 Constitution Avenue, NW, Washington, DC. FOR FURTHER IN FORMATION CONTACT: Con cerning the proposed reg- ulations, Ju li Ro Kim or George Masnik, (202) 622–30 90; concerning submissions of comments, the hearing, and/or to be placed on th e building access list to at- tend the hea ring, Kelly Banks at (202) 622–7180 (n ot toll-free numbers). SUPPLEMENT ARY INFORMATION: Background Gift tax is c omputed by determining a tax on the to tal of the gifts deemed made by the dono r in the year for which the re- turn is fil ed (the current calendar year) plus the total o f that donor’s gifts in prior years (prior tax able gifts). The tax so computed is then red uced by the tax that would have been paya ble on the prior taxable gifts, had the tax ra te for the current taxable year ap- pliedtot he prior taxable gifts. The re- sult (aft er taking into account the applica- ble cred it amount under section 2505) is the gift tax on the gifts in the current calen- dar year . Similarly, the estate tax is com- puted by determining a tax on the sum of the valu e of the decedent’s taxable estate and the value of certain taxable gifts (ad- justed taxable gifts) made by the decedent prior t o death. The tax computed is then re- duced b y the gift tax that would have been payabl e on the adjusted taxable gifts, had the es tate tax rate applied to the adjusted taxab le gifts. The result (after allowing for vario us credits) is the estate tax on the tax- able e state. The Ta xpayer Relief Act of 1997 (TRA) (Publ ic Law 105–34, 111 Stat. 855), the Inter nal Revenue Service Restructuring and R eform Act of 1998 (Public Law 105– 206, 112 Stat. 685), and the Tax and Trad e Relief Extension Act of 1998 (Pub- lic L aw 105–277, 112 Stat. 2681–909), (col lectively, the 1998 Acts), enacted or am ended sections 2001(f), 2504(c), 650 1(c)(9), and 7477, effective in the cas e of gifts made after August 5, 1997, to p rovide a degree of finality regarding the valuation of lifetime gifts for gift and estate tax pur poses. Congress was con- cerned that th e prior regime resulted in the resolution of controversies based on stale evidence, and necessitated the retention of records for u nduly long periods of time. H.R. Rep. No. 105–148 at 359 (1997). Under sectio ns 6501(a) and (c)(9) as amendedbyTR A and the 1998 Acts, and the applicab le regulations, if a transfer of property is a dequately disclosed on a gift tax return, then the period of limitations for assessment of gift tax with regard to that transfer wi ll commence to run on the date the return i s filed. Once the time for as- sessment o f gift tax has expired for a trans- fer made af ter August 5, 1997, the value of the gift as “finally determined” for gift tax purpos es, as defined in section 2001(f), is the valu e to be used for purposes of de- terminin g prior taxable gifts in computing the gift t ax liability in subsequent years under sec tion 2504(c), and for purposes of determ ining adjusted taxable gifts in computi ng the estate tax liability under section 2001(f). Under §§20.2001–1(b) and 25.2 504–2(b), this finality rule applies with res pect to all issues that might be raised w ith respect to the transfer, includ- ing val uation issues and legal issues. The amount of a gift is finally determined if: (1) the amountisshownonagifttaxreturn and the IRS does not contest the amount before the period for assessing gift tax ex- pires ; (2) before the period for assessing gift t ax expires, the amount is adjusted by the IR S and the taxpayer does not contest the ad justed amount; or, (3) the amount is deter mined by a court or pursuant to a set- tlem ent agreement between the taxpayer and t he IRS. Sect ion 7477 was enacted as part of TRA i n conjunction with these other pro- visi ons to provide a declaratory judgment proc edure pursuant to which taxpayers may c ontest in the United States Tax Court an I RS determination regarding the value of a gift. See H.R. CONF. REP. NO. 105 –220, at 407–408 (1997). In the ab- sen ce of section 7477, without an actual gif t tax deficiency, a taxpayer would be una ble to petition the Tax Court to contest th e determination or, without an overpay- me nt of tax, file a claim for refund or br ing suit for refund in Federal court. This 2008–25 I.R.B.1170June 23, 2008 could occur, for example, if an increase in gift tax determined under section 2502 is offset by the taxpayer’s applicable credit amount under section 2505(a), so that no additional tax would be assessed as a result of the valuation increase. Thus, without section 7477, such a taxpayer would be left without any way to challenge the IRS determination, even though, upon the ex- piration of the statute of limitations, that determinationwouldbecomebindingfor purposes of calculating the cumulative gift tax on all future gifts of that taxpayer, as well as the taxpayer’s estate tax liability. Explanation of Provisions Under section 7477(a), the donor may contest an IRS determination of the amount of a gift. Specifically, the donor may petition the Tax Court for a declaratory judgment, provided that cer- tain requirements are met. Section 7477(a) applies in the case of an actual controversy involving a determination by the IRS re- garding the value of a gift that is shown on the gift tax return or disclosed on the gift tax return or in a statement attached to that return. These proposed regulations provide a procedure for pursuing a declaratory judg- ment in the Tax Court pursuant to section 7477 in situations where, prior to the en- actment of that section, the taxpayer would havehadnoremedytochallengetheIRS determination. Specifically, the procedure provided by these proposed regulations ap- plies only in those situations where an ad- justment by the IRS does not result in a gift tax deficiency or refund. In situations where the IRS adjustment results in a pro- posed tax deficiency or a potential refund, taxpayers should not follow the procedures in these proposed regulations but should continue to follow the procedures already in place to dispute a deficiency or claim a refund. These procedures more efficiently address and resolve disputes involving a deficiency or refund. The first requirement for eligibility for relief under section 7477 is that the trans- fer must be shown or disclosed “on the re- turn of tax imposed by chapter 12,” that is, a Federal gift tax return, or on a statement attached to the return. Under the proposed regulations, the return of tax imposed by chapter 12 is defined as the last gift tax re- turn for the calendar year filed on or before the due date of the return, including exten- sions granted (if any), or if a timely return is not filed, the first gift tax return for the calendar year filed after the due date. If the transfer is not shown or disclosed on the gift tax return, or on a statement attached to the return, a declaratory judg- ment under section 7477 is not available. If, however, a transfer is disclosed on the return or on a statement attached to the return, this eligibility requirement for the section 7477 procedure is satisfied, even if the transfer is disclosed in a manner that does not satisfy the requirements of sec- tion 6501(c)(9) and §301.6501(c)–1(e) or (f) pertaining to adequate disclosure suffi- cient to commence the running of the pe- riod of limitations on assessment. There may be no compelling reason for the IRS to examine a transaction that is disclosed on the return but not in a manner suffi- cient to trigger the running of the statute of limitations, because the time period for adjusting the value of the gift is not lim- ited by the statute of limitations for as- sessments. The Treasury Department and the IRS, however, recognize that in many cases the IRS may prefer to contempora- neously resolve the transfer tax treatment of that transaction, even though the stan- dards for adequate disclosure with regard to that transaction have not been satisfied by the donor. Thus, the IRS in its discre- tion may make a determination regarding the transfer and place the transfer in con- troversy by mailing a notice of determina- tion of value used in unagreed cases (Let- ter 3569) with regard to that transfer. The ability to place a transfer that is not ad- equately disclosed in controversy is con- sistent with the Congressional purpose in enacting the TRA provisions, noted pre- viously, to promote the early resolution of gift tax controversies based on contempo- raneous evidence. The IRS and Treasury Department emphasize that the issuance of a Letter 3569 with regard to such a trans- fer does not constitute a determination by the IRS that the transfer was adequately disclosed or otherwise cause the period of limitations on assessment to commence to run with respect to that transfer. Alternatively, the IRS may in its discre- tion decide not to put a transfer in contro- versy at that time (whether or not any other transfer reported on a gift tax return is then put into controversy). If the IRS decides not to put the transfer into controversy at that time, the IRS will not issue a Letter 3569 (described in this preamble) (or the Letter 3569 issued will not address that transfer), the declaratory judgment proce- dure will not be available for that trans- fer, and the limitations period applicable to that transfer will remain open. Section7477alsorequiresanactual controversy with respect to a determi- nation by the IRS of the value of the disclosed transfer. Thus, the donor is not permitted to bypass the examination process and unilaterally seek a declara- tory judgment. Generally, the IRS must propose adjustments with which the donor disagrees. Accordingly, the proposed regulations provide that, in order for the section 7477 declaratory judgment proce- dure to be available to a donor, the IRS must first make a determination regarding the gift tax treatment of the transfer that results in an actual controversy in a situ- ation where the adjustments do not result in a gift tax deficiency or refund. This IRS determination is deemed to be made by the mailing of a Letter 3569 to notify the taxpayer of the adjustments proposed by the IRS. The mailing of this letter to the donor is the prerequisite for filing a petition with the Tax Court requesting a declaratory judgment under section 7477. Section 7477 also requires that the donor’s pleading seeking a declaratory judgment under section 7477 must be filed with the Tax Court before the 91 st day after the mailing of the Letter 3569 by the IRS. The pleading must be in the form of a petition subject to Tax Court Rule 211(d). Finally, section 7477(b)(2) provides that the Tax Court may not issue a declara- tory judgment under section 7477 unless it first determines that the donor has ex- hausted all administrative remedies avail- able to the donor within the IRS with respect to the controversy. Tax Court Rule 211(d) requires that the petition in an ac- tion under section 7477 must contain a statement that the petitioner has exhausted all administrative remedies within the IRS. See also Tax Court Rule 210(c)(4). Accordingly, the proposed regulations set forth the administrative remedies available to the donor with respect to a determina- tion by the IRS of the amount of a gift, and the circumstances in which the IRS will not contest the donor’s allegation that administrative remedies have been ex- hausted. The administrative remedies are June 23, 200811712008–25 I.R.B. intended to parallel those applicable in the case of an asserted gift tax deficiency. Specifically, the proposed regulations provide that the IRS will not contest the donor’s allegation that the donor’s admin- istrative remedies have been exhausted if: (1) the donor requests Appeals consider- ation in writing within 30 calendar days after the mailing date of a notice of pre- liminary determination of value (Prelimi- nary Determination Letter) from the IRS, or by such later date for responding to the Preliminary Determination Letter as de- termined pursuant to IRS procedures; (2) the donor participates fully in the Appeals consideration process, including without limitation timely submitting all additional information related to the amount of the giftthatisrequestedbytheIRSincon- nection with (or as a follow-up to) the Ap- peals consideration process; and (3) the IRS mails to the donor the Letter 3569, which will notify the donor of the proposed adjustments and of the donor’s right to contest the determination by filing a peti- tion for declaratory judgment with the Tax Court before the 91 st day after the date of mailing the Letter 3569. The Letter 3569 usually will be issued by the Appeals of- fice. However, because section 7477 re- quires that the Tax Court, rather than the IRS, determine whether the donor has ex- hausted all administrative remedies, the donor generally will be sent a Letter 3569 in those situations where the donor does not respond to the Preliminary Determina- tion Letter, or expressly declines to partic- ipate in the Appeals process. If a donor does not respond to a Preliminary Deter- mination Letter, or if a donor does not par- ticipate in the Appeals process, the IRS will consider the donor to have failed to exhaust administrative remedies. In such cases, the IRS may challenge any allega- tion in the donor’s petition for a section 7477 declaratory judgment that the donor has exhausted all administrative remedies. The proposed regulations also provide that the IRS will not contest the donor’s allegation that all administrative remedies have been exhausted in certain circum- stances where the above-described process is not followed by the IRS. (For example, the IRS might mail a Letter 3569 to the donor in the absence of these other pre- liminary steps where, because of the im- minent expiration of the applicable statute of limitations, the IRS believes there is not sufficient time to issue a Preliminary De- termination Letter to allow Appeals con- sideration). If the IRS’s decision not to issue a Preliminary Determination Letter is not due to the donor’s actions or fail- ure to act, the IRS will not contend that the donor failed to exhaust all adminis- trative remedies, provided that the donor fully participates in the Appeals consid- eration process offered by the IRS during the pendancy of the Tax Court proceeding. In this regard, the IRS and Treasury De- partment do not view the reference to sec- tion 7477 contained in §601.106(a)(2)(iv) of the Statement of Procedural Rules as currently in effect and Rev. Proc. 87–24, 1987–1 C.B. 720, as prohibiting Appeals’ jurisdiction to consider docketed cases un- der current section 7477. The version of section 7477 referenced in those items was repealed prior to the enactment of the cur- rent section 7477 as part of the TRA. The proposed regulations confirm that the donor is not required to consent to an extension of the time within which gift tax with respect to the transfer at issue maybeassessedinordertoexhaustthe donor’s administrative remedies, and that the failure to consent to such an extension will not be taken into account for this pur- pose. See section 7430(b)(1) andMinahan v. Commissioner, 88 T.C. 492 (1987), con- sidering this issue in the context of section 7430(b)(1) prior to amendment by Public Law 104–168 (110 Stat. 1452). Under the proposed regulations, a donor may petition for a declaratory judg- ment with respect to disputes regarding valuation and/or other related issues. This is consistent with §§20.2001–1(b) and 25.2504–2(b) providing that, once the gift tax statute of limitations has expired with respect to a transfer, the IRS is pre- cluded from making any adjustments with respect to that transfer for purposes of determining prior taxable gifts or adjusted taxable gifts, regardless of whether the adjustment involves a valuation issue or a legal issue pertaining to the proper in- terpretation of the gift tax law. See also §301.6501(c)–1(f)(5) providing a similar rule regarding transfers that are incom- plete gifts but are reported as completed gifts. Accordingly,even if a gift tax ad- justment does not generate any additional gift tax liability, the IRS nevertheless is required to propose the adjustment (and to take all other necessary steps) in order to challenge the return as filed within the statutory limitationsperiod, regardless of the nature of the issue presented. Sections 2001(f), 2504(c), 6501(c)(9) and 7477, as enacted or amended by TRA and the 1998 Acts, provide an integrated statu- tory regime pursuant to which taxpayers are accorded finality with respect to ad- equately disclosed transfers (except for transfers that are reported as incomplete gifts), while the IRS is afforded the rea- sonable opportunity to identify in a timely manner returns that present issues that merit further examination. The section 7477 declaratory judgment procedure is a necessary part of this regime because it provides a mechanism to finally resolve any disputed adjustments in circumstances where there is no tax assessment and thus the donor would otherwise be unable to satisfy the jurisdictional requirements for any judicial resolution. The IRS and Trea- sury Department believe it is appropriate for the declaratory judgment mechanism under section 7477, when available in cir- cumstances where there is no deficiency or refund, to be available for all adjustments regardless of whether the basis for those adjustments is factual, legal, or both. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regu- lations and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexi- bility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Small Business Administration for comment on their impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed origi- nal and eight (8) copies)orelectroniccom- ments that are submitted timely to the IRS. The IRS and the Treasury Department re- quest comments on the clarity of the pro- 2008–25 I.R.B.1172June 23, 2008 posed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for October 16, 2008 at 10:00 a.m. in the auditorium of the Internal Revenue Building, 1111 Constitution Avenue, NW, Washington, DC. In addition, all visi- tors must present photo identification to enter the building. Because of access re- strictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the “FOR FURTHER INFORMATION CONTACT” section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Per- sons who wish to present oral comments at the hearing must submit comments by September 8, 2008, and submit an outline of the topics to be discussed and the time to be devoted to each topic (signed origi- nal and eight (8) copies) by September 11, 2008. A period of 10 minutes will be allot- ted 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. Drafti ng Information The principal author of these proposed regulations is Juli Ro Kim, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. Other per- sonnel from the IRS and the Treasury Department participated in their develop- ment. ***** Proposed Amendments to the Regulations Accordingly, 26 CFR part 301 is pro- posedtobeamendedasfollows: PART 301—PROCEDURE AND ADMINISTRATION Paragraph 1. The authority citation for part 301 continues to read in part as fol- lows: Authority: 26 U.S.C. 7805 * * * Par. 2. Section 301.7477–1 is revised to read as follows: §301.7477–1 Declaratory Judgments relating to the value of certain gifts for gift tax purposes. (a)In general. If the requirements contained in paragraph (d) of this section are satisfied, a donor may petition the United States Tax Court under section 7477 for a declaratory judgment regarding the amount of one or more of the donor’s gifts during the calendar year for Federal gift tax purposes, if the adjustment(s) pro- posed by the Internal Revenue Service (IRS) will not result in any deficiency in or refund of the donor’s gift tax liability for that calendar year. (b)Declaratory judgment proce- dure—(1)In general. If a donor does not resolve a dispute with the IRS concerning the value of a transfer for gift tax purposes at the Examination level, the donor will be sent a notice of preliminary determination of value, or such other document as may be utilized by the IRS for this purpose from time to time, but referred to in this section as a Preliminary Determination Letter, inviting the donor to file a formal protest and to request consideration by the appropriate IRS Appeals office. See §§601.105 and 601.106 of this chapter. Subsequently, the donor will be sent a notice of determination of value (Letter 3569, or such other document as may be utilized from time to time by the IRS for this purpose in cases where no deficiency or refund would result, but referred to in this section as Letter 3569) if— (i) The donor requests Appeals consid- eration in writing within 30 calendar days after the mailing date of the Preliminary Determination Letter, or by such later date as determined pursuant to IRS procedures, and the matter is not resolved by Appeals; (ii) The donor does not request Appeals consideration within the time provided in paragraph (b)(1)(i) of this section; or (iii) The IRS does not issue a Prelim- inary Determination Letter in circum- stances described in paragraph (d)(3)(ii) of this section. (2)Notice of determination of value. The Letter 3569 will notify the donor of the adjustment(s) proposed by the IRS, and will advise the donor that the donor may contest the determination made by the IRS by filing a petition with the Tax Court be- fore the 91 st day after the date on which the Letter 3569 was mailed to the donor by the IRS. (3)Tax Court petition. If the donor does not file a timely petition with the Tax Court, the IRS determination as set forth in the Letter 3569 will be considered the final determination of value, as defined in sections 2504(c) and 2001(f). If the donor files a timely petition with the Tax Court, the Tax Court will determine whether the donor has exhausted available administra- tive remedies. Under section 7477, the Tax Court is not authorized to issue a declara- tory judgment unless the Tax Court finds that the donor has exhausted all adminis- trative remedies within the IRS. See para- graph (d)(3) of this section regarding the exhaustion of administrative remedies. (c)Adjustments subject to declara- tory judgment procedure. The declaratory judgment procedures set forth in this sec- tion apply to adjustments involving all issues relating to the transfer, including without limitation valuation issues and legal issues involving the interpretation and application of the gift tax law. (d)Requirements for declaratory judg- ment procedure. The declaratory judgment procedure provided in this section is avail- able to a donor with respect to a trans- fer only if the requirements of paragraphs (d)(1) through (4) of this section with re- gard to that transfer are satisfied. (1)Reporting. The transfer is shown or disclosed on the return of tax imposed by chapter 12 for the calendar year dur- ing which the transfer was made or on a statement attached tosuch return. For pur- poses of this paragraph, the term return of tax imposed by chapter 12 means the last gift tax return (Form 709, “United States Gift (and Generation-Skipping Transfer) Tax Return,” or such other form as may be utilized for this purpose from time to time by the IRS) for the calendar year filedonorbeforetheduedateofthe return, including extensions granted if any, or, if a timely return is not filed, the first gift tax return for that calendar year filed after the due date. For purposes of satisfying this requirement, the transfer need not be reported in a manner that constitutes adequate disclosure within the meaning of §301.6501(c)–1(e) or (f) (and thus for which, under §§20.2001–1(b) and 25.2504–2(b) of this chapter, the period June 23, 200811732008–25 I.R.B. will not expire during which the IRS may adjust the value of the gift). The issuance of a Letter 3569 with regard to a transfer disclosed on a return does not constitute a determination by the IRS that the transfer was adequately disclosed, or otherwise cause the period of limitations on assess- ment to commence to run with respect to that transfer. In addition, in the case of a transfer that is shown on the return, the IRS may in its discretion choose to defer until a later time making a determination with regard to such transfer. If the IRS exercises its discretion to defer such deter- mination in that case, the transfer will not be addressed in the Letter 3569 (if any) sent to the donor currently, and the donor is not yet eligible for a declaratory judg- ment with regard to that transfer under section 7477. (2)IRS determination and actual con- troversy. The IRS makes a determina- tion regarding the gift tax treatment of the transfer that results in an actual contro- versy. The IRS makes a determination that results in an actual controversy with respect to a transfer by mailing a Letter 3569 to the donor, thereby notifying the donor of the adjustment(s) proposed by the IRS with regard to that transfer and of the donor’s rights under section 7477. (3)Exhaustion of administrative reme- dies—(i)In general — Appeals office con- sideration. The Tax Court determines that the donor has exhausted all administrative remedies available within the IRS for re- solving the controversy. For purposes of this section, the IRS will consider a donor to have exhausted all administrative reme- dies if, prior to filing a petition in Tax Court (except as provided in paragraph (d)(3)(ii) of this section), the donor, or a qualified representative of the donor de- scribed in §601.502 of this chapter, timely requests consideration by Appeals and par- ticipates fully in the Appeals considera- tion process, including, without limitation, timely submitting all information related to the transfer that is requested by the IRS in connection with the Appeals considera- tion. A timely request for consideration by Appeals is a written request from the donor for Appeals consideration made within 30 days after the mailing date of the Prelimi- nary Determination Letter, or by such later date for responding to the Preliminary De- termination Letter as is agreed to between the donor and the IRS. (ii)No Preliminary Determination Let- ter issued. If the IRS does not issue a Pre- liminary Determination Letter to the donor prior to the issuance of Letter 3569, the IRS nevertheless will consider the donor to have exhausted all administrative reme- dies within the IRS for purposes of section 7477 upon the issuance of the Letter 3569, provided that— (A) The IRS decision not to issue the Preliminary Determination Letter was not due to actions or inactions of the donor (such as a failure to supply requested in- formation or a current mailing address to the Area Director having jurisdiction over the tax matter); and (B) The donor, or a qualified represen- tative of the donor described in §601.502 of this chapter, after the filing of a peti- tion in Tax Court for a declaratory judg- ment pursuant to section 7477, fully par- ticipates (within the meaning of paragraph (d)(3)(i) of this section) in the Appeals of- fice consideration when offered by the IRS whilethecaseisindocketedstatus. (iii)Failure to agree to extension of time for assessment. The donor has the right to agree (or to decline to agree) to an exten- sion of the time under section 6501 within which gift tax with respect to the transfer at issue may be assessed. For purposes of section 7477, the donor’s refusal to agree to such an extension will not be considered by the IRS to constitute a failure by the donor to exhaust all administrative reme- dies available to the donor within the IRS. (4)Timely petition in Tax Court.The donor files a pleading with the Tax Court requesting a declaratory judgment under section 7477. This pleading must be filed with the Tax Court before the 91st day after the date of mailing of the Letter 3569 by the IRS to the donor. The pleading must be in the form of a petition subject to Tax Court Rule 211(d). (e)Examples. The following exam- ples illustrate the provisions of this section. These examples, however, do not address any other situations that might affect the Tax Court’s jurisdiction over the proceed- ing. The examples read as follows: Example 1.Exhaustion of administrative reme- dies. The donor (D) timely files a Form 709, “United States Gift (and Generation-Skipping Transfer) Tax Return,” on which D reports D’s completed gift of closely held stock. After conducting an examination, the IRS concludes that the value of the stock on the date of the gift is greater than the value reported on the return. Because the amount of D’s available applica- ble credit amount under section 2505 is sufficient to cover any resulting tax liability, no gift tax deficiency will result from the adjustment. D is unable to resolve the matter with the IRS examiner. The IRS sends a notice of preliminary determination of value (Prelim- inary Determination Letter) to D informing D of the proposed adjustment. D, within 30 calendar days af- ter the mailing date of the letter, submits a written re- quest for Appeals consideration. During the Appeals process, D provides to the Appeals office all addi- tional information (if any) requested by Appeals rele- vant to the determination of the value of the stock in a timely fashion. The Appeals office and D are unable to reach an agreement regarding the value of the stock as of the date of the gift. The Appeals office sends D a notice of determination of value (Letter 3569). For purposes of section 7477, the IRS will consider D to have exhausted all available administrative remedies within the IRS, and thus will not contest the allegation in D’s petition that D has exhausted all such adminis- trative remedies. Example 2.Exhaustion of administrative reme- dies. Assume the same facts as inExample 1, except that D does not timely request consideration by Ap- peals after receiving the Preliminary Determination Letter. A Letter 3569 is mailed to D more than 30 days after the mailing of the Preliminary Determina- tion Letter and prior to the expiration of the period of limitations for assessment of gift tax. D timely files a petition in Tax Court pursuant to section 7477. Af- ter the case is docketed, D requests Appeals consid- eration. In this situation, because D did not respond timely to the Preliminary Determination Letter with a written request for Appeals consideration, the IRS will not consider D to have exhausted all administra- tive remedies available within the IRS for purposes of section 7477 prior to filing the petition in Tax Court, and thus may contest any allegation in D’s petition that D has exhausted all such administrative reme- dies. Example 3.Exhaustion of administrative reme- dies. D timely files a Form 709 on which D reports D’s completed gifts of interests in a family limited partnership. After conducting an examination, the IRS proposes to adjust the value of the gift as reported on the return. No gift tax deficiency will result from the adjustments, however, because D has a sufficient amount of available applicable credit amount under section 2505. D declines to consent to extend the time for the assessment of gift tax with respect to the gifts at issue. Because of the pending expiration of the pe- riod of limitation on assessment with respect to the gifts, the IRS determines that there is not adequate time for Appeals consideration. Accordingly, the IRS mails to D a Letter 3569, even though a Preliminary Determination Letter had not first been issued to D. D timely files a petition in Tax Court pursuant to sec- tion 7477. After the case is docketed in Tax Court, D is offered the opportunity for Appeals to consider any dispute regarding the determination and participates fully in the Appeals consideration process. However, the Appeals office and D are unable to resolve the issue. The IRS will consider D to have exhausted all administrative remedies available within the IRS, and thus will not assert that D has not exhausted all such administrative remedies. Example 4.Legal issue. In 2006, D transfers non- vested stock options to a trust for the benefit of D’s child. D timely files a Form 709 reporting the trans- 2008–25 I.R.B.1174June 23, 2008 fer as a completed gift for Federal gift tax purposes and complies with the adequate disclosure require- ments for purposes of triggering the commencement of the applicable statute of limitations. Pursuant to §301.6501(c)–1(f)(5), adequate disclosure of a trans- fer that is reported as a completed gift on the Form 709 will commence the running of the period of lim- itations for assessment of gift tax on D, even if the transfer is ultimately determined to be an incomplete gift for purposes of §25.2511–2 of this chapter. Af- ter conducting an examination, the IRS concurs with the reported valuation of the stock options, but con- cludes that the reported transfer is not a completed gift for Federal gift tax purposes. D is unable to re- solve the matter with the IRS examiner. Assuming that the IRS mails to D a Letter 3569 with regard to this transfer, and that D complies with the adminis- trative procedures set forth in this section, including the exhaustion of all administrative remedies avail- able within the IRS, then D may file a petition for declaratory judgment with the Tax Court pursuant to section 7477. Example 5.Transfers in controversy.OnApril 16, 2007, D timely files a Form 709 on which D re- ports gifts made in 2006 of fractional interests in cer- tain real property and of interests in a family limited partnership (FLP). However, although the gifts are disclosed on the return, the return does not contain information sufficient to constitute adequate disclo- sure under §301.6501(c)–1(e) or (f) for purposes of the application of the statute of limitations on assess- ment of gift tax with respect to the reported gifts. The IRS conducts an examination and concludes that the value of both the interests in the real property and the FLP interests on the date(s) of the transfers are greater than the values reported on the return. No gift tax deficiency will result from the adjustments because D has a sufficient amount of remaining ap- plicable credit amount under section 2505. However, D does not agree with the adjustments. The IRS sends a Preliminary Determination Letter to D informing D of the proposed adjustments in the value of the re- ported gifts. D, within 30 calendar days after the mailing date of the letter, submits a written request for Appeals consideration. The Appeals office and D are unable to reach an agreement regarding the value of any of the gifts. In the exercise of its discretion, the IRS decides to resolve currently only the value of the real property interests, and to defer the resolu- tion of the value of the FLP interests. On May 28, 2009, the Appeals office sends D a Letter 3569 ad- dressing only the value of the gifts of interests in the real property. Because none of the gifts reported on the return filed on April 16, 2007, were adequately disclosed for purposes of §301.6501(c)–1(e) or (f), the period of limitations during which the IRS may adjust the value of those gifts has not begun to run. Accordingly, the Letter 3569 is timely mailed. If D timely files a petition in Tax Court pursuant to section 7477 with regard to the value of the interests in the real property, then, assuming the other requirements of section 7477 are satisfied with regard to those in- terests, the Tax Court’s declaratory judgment, once it becomes final, will determine the value of the gifts of the interests in the real property. Because the IRS has not yet put the gift tax value of the interests in the FLP into controversy, the procedure under section 7477 is not available with regard to those gifts. (d)Effective/applicability date.This section applies to civil proceedings de- scribed in section 7477 filed in the United States Tax Court on or after the date these regulations are published as final regula- tions in theFederal Register. Linda E. Stiff, Deputy Commissioner for Services and Enforcement. (Filed by the Office of the Federal Reg ister on June 6, 2008, 8:45 a.m., and published in the issue of the Federal Register for June 9, 2008, 73 F.R. 32503) Notice of Proposed Rulemaking Qualified Nonpersonal Use Vehicles REG–106897–08 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: This document contains pro- posed regulations relating to qualified non- personal use vehicles as defined in section 274(i). Qualified nonpersonal use vehi- cles are excepted from the substantiation requirements of section 274(d)(4) that ap- ply to listed property as defined in section 280F(d)(4). These proposed regulations would add clearly marked public safety officer vehicles as a new type of quali- fied nonpersonal use vehicle. These pro- posed regulations would affect employers that provide their employees with qualified nonpersonal use vehicles and the employ- ees who use such vehicles. DATES: Written or electronic comments and requests for a public hearing must be received by September 8, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR(REG–106897–08), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered between the hours of 8:00 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–106897–08), Courier’s Desk, In- ternal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC. Addi- tionally, taxpayers may submit electronic comments directly via the Federal eRule- making Portal atwww.regulations.gov (IRS REG–106897–08). FOR FURTHER INFORMATION CONTACT: Concerning the pro- posed regulations, Don Parkinson or Selvan Boominathan at (202) 622–6040; concerning the submission of comments or requests for a hearing, Kelly Banks at (202) 622–3628 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background This document contains proposed Income Tax Regulations under section 274(i) added by section 2(b) of Pub- lic Law 99–44 (May 24, 1985), which provides a definition of qualified nonper- sonal use vehicle. Temporary Regulation §1.274–5T(k), identifying categories of qualified nonpersonal use vehicles, was issued in T.D. 8061, 1985–2 C.B. 93 (1985). A notice of proposed rulemak- ing (LR–145–84, 1985–2 C.B. 809) was issued by cross-reference to Temporary Regulation §1.274–5T(k) (50 FR 46088, 1985–2 C.B. 809 (1985)). These pro- posed regulations incorporate the text of §1.274–5T(k) and add clearly marked public safety officer vehicles as a new type of qualified nonpersonal use vehicle, listed along with clearly marked police and fire vehicles at §1.274–5(k)(2)(ii)(A). Clearly marked public safety officer vehicles are added to the definition of clearly marked police and fire vehi- cles at §1.274–5(k)(3), and an exam- ple is added at §1.274–5(k)(8). (See §601.601(d)(2)(ii)(b).) Explanation of Provisions Section 274(d) provides that a taxpayer is not allowed a deduction or credit for cer- tain expenses unless the expense is sub- stantiated. These substantiation require- ments apply to expenses incurred in the use of any listed property (defined in sec- tion 280F(d)(4)), which includes any pas- senger automobile and any other property used as a means of transportation. Section 274(d) does not apply to any qualified non- personal use vehicle as defined in section 274(i). June 23, 200811752008–25 I.R.B. Section 274(i) provides that a quali- fied nonpersonal use vehicle is any vehi- cle which by reason of its nature is not likely to be used more than ade minimis amount for personal uses. The legisla- tivehistorytosection274(i)provideda list of qualified nonpersonal use vehicles and identified a number of examples of qualified nonpersonal use vehicles such as school buses, qualified specialized utility repair trucks, and qualified moving vans. The legislative history indicated that Con- gress wanted the Commissioner to expand the list to include other vehicles appropri- ate for listing because by their nature it is highly unlikely that they will be used more than a very minimal amount for personal purposes. H.R. Rep. No. 99–34, at 11 (1985). Passenger automobiles such as sedans and sport utility vehicles are generally not exempt from taxation as qualified nonper- sonal use vehicles because by design they can easily be used for personal purposes. However, unmarked law enforcement ve- hicles and clearly marked police and fire vehicles are included in the list of quali- fied nonpersonal use vehicles set forth in the legislative history to section 274(i) and incorporated into the proposed and tempo- rary regulations. The IRS and the Treasury Department have become aware of a need for an addi- tional category of vehicles to be included in the list of qualified nonpersonal use vehicles. Clearly marked vehicles pro- vided to Federal, state and local govern- ment workers who respond to emergency situations do not satisfy the current reg- ulations governing qualified nonpersonal use vehicles if the individual workers are not employed by either the fire department or police department. Accordingly, the proposed regulations add clearly marked public safety officer vehicles to the list of qualified nonpersonal use vehicles so that emergency responders receive the same treatment whether they work for the police department, fire department or another de- partment of state or local government. A clearly marked public safety officer vehicle is a vehicle owned or leased by a governmental unit or any agency or in- strumentality thereof, that is required to be used for commuting by a public safety officer as defined in section 402(l)(4)(C) who, when not on a regular shift, is on call at all times, provided that any personal use (other than commuting) of the vehicle outside the limit of the public safety of- ficer’s obligation to respond to an emer- gency is prohibited by such governmen- tal unit. A public safety officer vehicle is clearly marked if, through painted insignia or words, it is readily apparent that the ve- hicle is a public safety officer vehicle. Section 402(l)(4)(C) provides that the term “public safety officer” shall have the same meaning given such term by the Omnibus Crime Control and Safe Streets Act of 1968, as codified at 42 U.S.C. section 3796b(9)(A). 42 U.S.C. Section 3796b(9)(A) defines public safety officer as “an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement of- ficer, a firefighter, a chaplain, or as a member of a rescue squad or ambulance crew.” Proposed §1.274–5(k) and (l) provide a list of qualified nonpersonal use ve- hicles and related definitions. Section 1.274–5(k) and (l) were originally pro- posed in 1985 (LR–145–84, 50 FR 46088, November 6, 1985) and simultaneously issued as a temporary regulation (T.D. 8061, 50 FR 46006, November 6, 1985). Paragraph (k) of LR–145–84 is being re-proposed, with amendments, as part of these proposed regulations. Paragraph (l) provides definitions of the terms “automo- bile,” “vehicle,” “employer,” “employee,” and “personal use.” Paragraph (l) is be- ing re-proposed, with no changes, as part of these proposed regulations. The cor- responding provisions of the proposed regulations in LR–145–84 are withdrawn upon publication of this notice. The cor- responding provisions of the temporary regulations in T.D. 8061 will be withdrawn once these proposed regulations are pub- lished as final regulations in theFederal Register. Special Analyses It has been determined that this Trea- sury decision is not a significant regula- tory action as defined in Executive Or- der 12866. Therefore, a regulatory assess- ment is not required. It is hereby certified that these regulations will not have a sig- nificant economic impact on a substantial number of small entities. This certification is based upon the fact that these regulations do not require a collection of information and do not impose any new or different re- quirements on small entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chap- ter 6) is not required. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Council for Advo- cacy of the Small Business Administration for comment on its impact on small busi- ness. Comments and Requests for Public Hearings Before these proposed amendments are adopted, consideration will be given to any written comments that are submitted to CC:PA:LPD:PR (REG–106897–08). All comments will be available for public in- spection and copying. A public hearing will be scheduled and held upon written request by any person who submits writ- ten comments on the proposed regulation. Notice of the time and place for the hearing will be published in theFederal Register. Drafting Information The principal authors of these reg- ulations are Don E. Parkinson and Selvan V. Boominathan, Office of the Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and Treasury Department participated in their development. ***** Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. Section 1.132–5 paragraph (h) is amended to read as follows: §1.132–5 Working condition fringes. ***** (h)Qualified nonpersonal use vehi- cles—(1)In general. Except as provided in paragraph (h)(2) of this section, 100 2008–25 I.R.B.1176June 23, 2008 percent of the value of the use of a quali- fied nonpersonal use vehicle (as described in §1.274–5(k)) is excluded from gross income as a working condition fringe, provided that, in the case of a vehicle de- scribed in §1.274–5(k)(3) through (8), the use of the vehicle conforms to the require- ments of that paragraph. (2)Shared usage of qualified nonper- sonal use vehicles.In general, a working condition fringe under this paragraph (h) is available to the driver and all passengers of a qualified nonpersonal use vehicle. How- ever, a working condition fringe under this paragraph (h) is available only with respect to the driver and not with respect to any passengers of a qualified nonpersonal use vehicle described in §1.274–5(k)(2)(ii)(L) or (P). ***** Par. 3. Section 1.274–5 paragraphs (k) and (l) and the last sentence of paragraph (m) are revised to read as follows: §1.274–5 Substantiation Requirements. ***** (k)Exceptions for qualified nonper- sonal use vehicles—(1)In general.The substantiation requirements of section 274(d)andthissectiondonotapplytoany qualified nonpersonal use vehicle (as de- fined in paragraph (k)(2) of this section). (2)Qualified nonpersonal use vehi- cle—(i)In general.For purposes of section 274(d) and this section, the termqualified nonpersonal use vehiclemeans any ve- hicle which, by reason of its nature (that is,design),isnotlikelytobeusedmore than ade minimisamount for personal purposes. (ii)List of vehicles.Vehicles which are qualified nonpersonal use vehicles include the following: (A) Clearly marked police, fire, and public safety officer vehicles (as defined and to the extent provided in paragraph (k)(3) of this section). (B) Ambulances used as such or hearses used as such. (C) Any vehicle designed to carry cargo with a loaded gross vehicle weight over 14,000 pounds. (D) Bucket trucks (cherry pickers). (E) Cement mixers. (F) Combines. (G) Cranes and derricks. (H) Delivery trucks with seating only for the driver, or only for the driver plus a folding jump seat. (I) Dump trucks (including garbage trucks). (J) Flatbed trucks. (K) Forklifts. (L) Passenger buses used as such with a capacity of at least 20 passengers. (M) Qualified moving vans (as defined in paragraph (k)(4) of this section). (N) Qualified specialized utility repair trucks (as defined in paragraph (k)(5) of this section). (O) Refrigerated trucks. (P) School buses (as defined in section 4221(d)(7)(c). (Q) Tractors and other special purpose farm vehicles. (R) Unmarked vehicles used by law en- forcement officers (as defined in paragraph (k)(6) of this section) if the use is officially authorized. (S) Such other vehicles as the Commis- sioner may designate. (3)Clearly marked police, fire, or pub- lic safety officer vehicles.A police, fire, or public safety officer vehicle is a vehicle, owned or leased by a governmental unit, or any agency or instrumentality thereof, that is required to be used for commuting by a police officer, fire fighter, or public safety officer (as defined in §402(l)(4)(C)) of this chapter who, when not on a regu- lar shift, is on call at all times, provided that any personal use (other than commut- ing) of the vehicle outside the limit of the police officer’s arrest powers or the fire fighter’s or public safety officer’s obliga- tion to respond to an emergency is pro- hibited by such governmental unit. A po- lice, fire, or public safety officer vehicle is clearly marked if, through painted insignia or words, it is readily apparent that the ve- hicle is a police, fire, or public safety offi- cer vehicle. A marking on a license plate is not a clear marking for purposes of this paragraph (k). (4)Qualified moving van.The term qualified moving vanmeans any truck or vanusedbyaprofessionalmovingcom- pany in the trade or business of moving household or business goods if— (i) No personal use of the van is allowed other than for travel to and from a move site (or forde minimispersonal use, such asastopforlunchonthewaybetweentwo move sites); (ii) Personal use for travel to and from a move site is an irregular practice (that is, not more than five times a month on average); and (iii) Personal use is limited to situations in which it is more convenient to the em- ployer, because of the location of the em- ployee’s residence in relation to the loca- tion of the move site, for the van not to be returned to the employer’s business loca- tion. (5)Qualified specialized utility repair truck.The termqualified specialized util- ity repair truckmeans any truck (not in- cluding a van or pickup truck) specifically designed and used to carry heavy tools, testing equipment, or parts if— (i) The shelves, racks, or other perma- nent interior construction which has been installed to carry and store such heavy items is such that it is unlikely that the truck will be used more than ade minimis amount for personal purposes; and (ii) The employer requires the em- ployee to drive the truck home in order to be able to respond in emergency situations for purposes of restoring or maintaining electricity, gas, telephone, water, sewer, or steam utility services. (6) Unmarked law enforcement vehi- cles—(i)In general. The substantiation re- quirements of section 274(d) and this sec- tion do not apply to officially authorized uses of an unmarked vehicle by a “law en- forcement officer”. To qualify for this ex- ception, any personal use must be autho- rized by the Federal, State, county, or local governmental agency or department that owns or leases the vehicle and employs the officer, and must be incident to law-en- forcement functions, such as being able to report directly from home to a stakeout or surveillance site, or to an emergency situ- ation. Use of an unmarked vehicle for va- cation or recreation trips cannot qualify as an authorized use. (ii)Law enforcement officer.The term law enforcement officermeans an individ- ual who is employed on a full-time basis by a governmental unit that is responsible for the prevention or investigation of crime involving injury to persons or property (in- cluding apprehension or detention of per- sons for such crimes), who is authorized by law to carry firearms, execute search warrants, and to make arrests (other than merely a citizen’s arrest), and who regu- larly carries firearms (except when it is not June 23, 200811772008–25 I.R.B. possible to do so because of the require- ments of undercover work). The term “law enforcement officer” may include an ar- son investigator if the investigator other- wise meets the requirements of this para- graph (k)(6)(ii), but does not include Inter- nal Revenue Service special agents. (7)Trucks and vans.The substantiation requirements of section 274(d) and this section apply generally to any pickup truck or van, unless the truck or van has been specially modified with the result that it is notlikelytobeusedmorethanade min- imisamount for personal purposes. For ex- ample, a van that has only a front bench for seating, in which permanent shelving that fills most of the cargo area has been installed, that constantly carries merchan- dise or equipment, and that has been spe- cially painted with advertising or the com- pany’s name, is a vehicle not likely to be used more than ade minimisamount for personal purposes. (8)Examples.The following exam- ples illustrate the provisions of paragraph (k)(3) and (6) of this section: Example 1. Detective C, who is a “law enforce- ment officer” employed by a state police department, headquartered in City M, is provided with an un- marked vehicle (equipped with radio communica- tion) for use during off-duty hours because C must be able to communicate with headquarters and be avail- able for duty at any time (for example, to report to a surveillance or crime site). The police department generally has officially authorized personal use of the vehicle by C but has prohibited use of the vehicle for recreational purposes or for personal purposes outside the state. Thus, C’s use of the vehicle for commuting between headquarters or a surveillance site and home and for personal errands is authorized personal use as described in paragraph (k)(6)(i) of this section. With respect to these authorized uses, the vehicle is not subject to the substantiation re- quirements of section 274(d) and the value of these uses is not included in C’s gross income. Example 2.Detective T is a “law enforcement of- ficer” employed by City M. T is authorized to make arrests only within M’s city limits. T, along with all other officers of the force, is ordinarily on duty for eight hours each work day and on call during the other sixteen hours. T is provided with the use of a clearly marked police vehicle in which T is required to com- mute to his home in City M. The police department’s official policy regarding marked police vehicles pro- hibits personal use (other than commuting) of the ve- hicles outside the city limits. When not using the vehicle on the job, T uses the vehicle only for com- muting, personal errands on the way between work and home, and personal errands within City M. All use of the vehicle by T conforms to the requirements of paragraph (k)(3) of this section. Therefore, the value of that use is excluded from T’s gross income as a working condition fringe and the vehicle is not subject to the substantiation requirements of section 274(d). Example 3. Director C is employed by City M as the director of the City’s rescue squad and is provided with a vehicle for use in responding to emergencies. The city’s rescue squad is not a part of City M’s po- lice or fire departments. The director’s vehicle is a sedan which is painted with insignia and words iden- tifying the vehicle as a being owned by the City’s rescue squad. C, when not on a regular shift, is on call at all times. The City’s official policy regard- ing clearly marked public safety officer vehicles pro- hibits personal use (other than for commuting) of the vehicle outside of the limits of the public safety of- ficer’s obligation to respond to an emergency. When not using the vehicle to respond to emergencies, City M authorizes C to use the vehicle only for commut- ing, personal errands on the way between work and home, and personal errands within the limits of C’s obligation to respond to emergencies. With respect to these authorized uses, the vehicle is not subject to the substantiation requirements of section 274(d) and the value of these uses is not includable in C’s gross income. (l)Definitions. For purposes of section 274(d) and this section, the termsauto- mobileandvehiclehave the same mean- ings as prescribed in §§1.61–21(d)(1)(ii) and 1.61–21(e)(2), respectively. Also, for purposes of section 274(d) and this sec- tion, the termsemployer,employeeand personal usehave the same meanings as prescribed in §1.274–6T(e). (m)***However,paragraph(j)(3)of this section applies to expenses paid or in- curred after September 30, 2002, and para- graph (k) applies to clearly marked pub- lic safety officer vehicles, as defined in §1.274–5(k)(3), only with respect to uses occurring after January 1, 2009. Par. 4. Section 1.274–5T is revised by amending paragraph (k) and (l) as follows: §1.274–5T Substantiation requirements (temporary). ***** (k) and (l) [Reserved]. For further guid- ance, see §§1.274–5(k) and (l). ***** Par. 5. Section 1.280F–6 is amended by revising paragraph (b)(2)(ii) to read: §1.280F–6 Special rules and definitions. ***** (b) * * * (2) * * * (ii)Exception. The term “listed prop- erty” does not include any vehicle that is a qualified nonpersonal use vehicle as de- fined in section 274(i) and §1.274–5(k). ***** Steven Miller, Acting Deputy Commissioner for Services and Enforcement. (Filed by the Office of the Federal Register on June 6, 2008, 8:45 a.m., and published in the issue of the Federal Register for June 9, 2008, 73 F.R. 32500) Deletions From Cumulative List of Organizations Contributions to Which are Deductible Under Section 170 of the Code Announcement 2008–55 The Internal Revenue Service has re- voked its determination that the organi- zations listed below qualify as organiza- tions described in sections 501(c)(3) and 170(c)(2) of the Internal Revenue Code of 1986. 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 Bulletinthatanorganizationnolonger qualifies. However, the Service is not precluded from disallowing a deduction for any contributions made after an or- ganization ceases to qualify under section 170(c)(2) if the organization has not timely filed a suit for declaratory judgment under section 7428 and if the contributor (1) had knowledge of the revocation 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 omissions of the organization that brought about this revocation. If on the other hand a suit for declara- tory judgment has been timely filed, con- tributions from individuals and organiza- tions described in section 170(c)(2) that are otherwise allowable will continue to be deductible. Protection under section 7428(c) would begin on June 23, 2008, and would end on the date the court first deter- mines that the organization is not described in section 170(c)(2) as more particularly set forth in section 7428(c)(1). For indi- vidual contributors, the maximum deduc- tion protected is $1,000, with a husband and wife treated as one contributor. This benefit is not extended to any individual, in wholeorinpart,fortheactsoromissions 2008–25 I.R.B.1178June 23, 2008 of the organization that were the basis for revocation. Texas Reinvestment Corporation II San Antonio, TX Zebra Project, Inc. Atlanta, GA Alliance for Science Health and Environment, Inc. Melbourne Beach, FL Gymfest, Inc. West Seneca, NY Estrellas Nacientes, Inc. New York, NY Dunardry Heritage Association Rickman, TN Students Are For Education, Inc. Tallahassee, FL June 23, 200811792008–25 I.R.B. Definition of Terms 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 ef- fect: Amplifieddescribes a situation where no change is being made in a prior pub- lished position, but the prior position is be- ingextendedtoapplytoavariationofthe fact situation set forth therein. Thus, if an earlier ruling held that a principle ap- plied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare withmodi- fied,below). Clarifiedis 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 ruling is being changed. Distinguisheddescribes a situation where a ruling mentions a previously pub- lished ruling and points out an essential difference between them. Modifiedis used where the substance of a previously published position is being 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 both A and B, the prior ruling is modified because it corrects a published position. (Compare withamplifiedandclarified, above). Obsoleteddescribes 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 rul- ings that are obsoleted because of changes in laws or regulations. A ruling may also be obsoleted because the substance has been included in regulations subsequently adopted. Revokeddescribes situations where the position in the previously published ruling is not correct and the correct position is beingstatedinanewruling. Supersededdescribes a situation where the new ruling does nothing more than re- state the substance and situation of a previ- ously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same po- sition published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single rul- ing a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new rul- ing does more than restate the substance of a prior ruling, a combination of terms is used. For example,modifiedandsu- persededdescribes a situation where the substance of a previously published 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 pub- lished ruling is first modified and then, as modified, is superseded. Supplementedis 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 rul- ing has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the ad- ditions, and supersedes all prior rulings in the series. Suspendedis 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 fol lowing abbreviations in current use and for merly used will appear in material publis hedintheBulletin. A—Individual. Acq.—A cquiescence. B—Individual. BE—Beneficiary. BK—Bank . B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cu mulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Coo perative. Ct.D.—Court Decision. CY—County. D—Decede nt. 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—Emp loyer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduc iary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Fo reign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Fed eral Unemployment Tax Act. FX—Foreign corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grante e. GP—General Partner. GR—Grantor. IC—Insura nce Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—No nacquiescence. O—Organization. P—Parent Corporation. PHC—Persona l Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Pa rtnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Re al Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsi diary. S.P.R.—Statement of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Trans feree. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpay er. TR—Trust. TT—Trustee. U.S.C.—Uni ted States Code. X—Corporation. Y—Corporation. Z—Corporat ion. 2008–25 I.R.B.iJune 23, 2008 Numerical Finding List 1 Bulletins 2008–1 through 2008–25 Announcements: 2008-1, 2008-1 I.R.B.246 2008-2, 2008-3 I.R.B.307 2008-3, 2008-2 I.R.B.269 2008-4, 2008-2 I.R.B.269 2008-5, 2008-4 I.R.B.333 2008-6, 2008-5 I.R.B.378 2008-7, 2008-5 I.R.B.379 2008-8, 2008-6 I.R.B.403 2008-9, 2008-7 I.R.B.444 2008-10, 2008-7 I.R.B.445 2008-11, 2008-7 I.R.B.445 2008-12, 2008-7 I.R.B.446 2008-13, 2008-8 I.R.B.480 2008-14, 2008-8 I.R.B.481 2008-15, 2008-9 I.R.B.511 2008-16, 2008-9 I.R.B.511 2008-17, 2008-9 I.R.B.512 2008-18, 2008-12 I.R.B.667 2008-19, 2008-11 I.R.B.624 2008-20, 2008-11 I.R.B.625 2008-21, 2008-13 I.R.B.691 2008-22, 2008-13 I.R.B.692 2008-23, 2008-14 I.R.B.731 2008-24, 2008-13 I.R.B.692 2008-25, 2008-14 I.R.B.732 2008-26, 2008-13 I.R.B.693 2008-27, 2008-15 I.R.B.751 2008-28, 2008-14 I.R.B.733 2008-29, 2008-15 I.R.B.786 2008-30, 2008-16 I.R.B.825 2008-31, 2008-15 I.R.B.787 2008-32, 2008-16 I.R.B.826 2008-33, 2008-16 I.R.B.826 2008-34, 2008-17 I.R.B.849 2008-35, 2008-17 I.R.B.849 2008-36, 2008-16 I.R.B.827 2008-37, 2008-17 I.R.B.850 2008-38, 2008-17 I.R.B.851 2008-39, 2008-18 I.R.B.867 2008-40, 2008-19 I.R.B.941 2008-41, 2008-19 I.R.B.943 2008-42, 2008-19 I.R.B.943 2008-43, 2008-19 I.R.B.944 2008-44, 2008-20 I.R.B.982 2008-45, 2008-20 I.R.B.982 2008-46, 2008-20 I.R.B.983 2008-47, 2008-20 I.R.B.983 2008-48, 2008-20 I.R.B.983 2008-49, 2008-21 I.R.B.1024 2008-50, 2008-21 I.R.B.1024 2008-51, 2008-22 I.R.B. 1040 2008-52, 2008-22 I.R.B.1040 Announcements— Continued: 2008-53, 2008-23 I.R.B.1137 2008-54, 2008-24 I.R.B.1155 2008-55, 2008-25 I.R.B.1178 Court Decisions: 2085, 2008-17 I.R.B.828 2086, 2008-19 I.R.B.905 Notices: 2008-1, 2008-2 I.R.B.251 2008-2, 2008-2 I.R.B.252 2008-3, 2008-2 I.R.B.253 2008-4, 2008-2 I.R.B.253 2008-5, 2008-2 I.R.B.256 2008-6, 2008-3 I.R.B.275 2008-7, 2008-3 I.R.B.276 2008-8, 2008-3 I.R.B.276 2008-9, 2008-3 I.R.B.277 2008-10, 2008-3 I.R.B.277 2008-11, 2008-3 I.R.B.279 2008-12, 2008-3 I.R.B.280 2008-13, 2008-3 I.R.B.282 2008-14, 2008-4 I.R.B.310 2008-15, 2008-4 I.R.B.313 2008-16, 2008-4 I.R.B.315 2008-17, 2008-4 I.R.B.316 2008-18, 2008-5 I.R.B.363 2008-19, 2008-5 I.R.B.366 2008-20, 2008-6 I.R.B.406 2008-21, 2008-7 I.R.B.431 2008-22, 2008-8 I.R.B.465 2008-23, 2008-7 I.R.B.433 2008-24, 2008-8 I.R.B.466 2008-25, 2008-9 I.R.B.484 2008-26, 2008-9 I.R.B.487 2008-27, 2008-10 I.R.B.543 2008-28, 2008-10 I.R.B.546 2008-29, 2008-12 I.R.B.637 2008-30, 2008-12 I.R.B.638 2008-31, 2008-11 I.R.B.592 2008-32, 2008-11 I.R.B.593 2008-33, 2008-12 I.R.B.642 2008-34, 2008-12 I.R.B.645 2008-35, 2008-12 I.R.B.647 2008-36, 2008-12 I.R.B.650 2008-37, 2008-12 I.R.B.654 2008-38, 2008-13 I.R.B.683 2008-39, 2008-13 I.R.B.684 2008-40, 2008-14 I.R.B.725 2008-41, 2008-15 I.R.B.742 2008-42, 2008-15 I.R.B.747 2008-43, 2008-15 I.R.B.748 2008-44, 2008-16 I.R.B.799 2008-45, 2008-17 I.R.B.835 2008-46, 2008-18 I.R.B.868 Notices— Continued: 2008-47, 2008-18 I.R.B.869 2008-48, 2008-21 I.R.B.1008 2008-49, 2008-20 I.R.B.979 2008-50, 2008-21 I.R.B.1010 2008-51, 2008-25 I.R.B.1163 2008-52, 2008-25 I.R.B.1166 Proposed Regulations: REG-208199-91, 2008-21 I.R.B.1017 REG-168745-03, 2008-18 I.R.B.871 REG-143716-04, 2008-25 I.R.B.1170 REG-147290-05, 2008-10 I.R.B.576 REG-100798-06, 2008-23 I.R.B.1135 REG-141998-06, 2008-19 I.R.B.911 REG-147775-06, 2008-19 I.R.B.916 REG-153589-06, 2008-14 I.R.B.730 REG-104713-07, 2008-6 I.R.B.409 REG-104946-07, 2008-11 I.R.B.596 REG-110136-07, 2008-17 I.R.B.838 REG-111583-07, 2008-4 I.R.B.319 REG-112196-07, 2008-21 I.R.B.1021 REG-114126-07, 2008-6 I.R.B.410 REG-114942-07, 2008-18 I.R.B.901 REG-119518-07, 2008-17 I.R.B.844 REG-124590-07, 2008-16 I.R.B.801 REG-127391-07, 2008-13 I.R.B.689 REG-136020-07, 2008-24 I.R.B.1154 REG-136701-07, 2008-11 I.R.B.616 REG-137573-07, 2008-15 I.R.B.750 REG-139236-07, 2008-9 I.R.B.491 REG-141399-07, 2008-8 I.R.B.470 REG-143468-07, 2008-17 I.R.B.848 REG-147832-07, 2008-8 I.R.B.472 REG-149475-07, 2008-9 I.R.B.510 REG-151135-07, 2008-16 I.R.B.815 REG-106897-08, 2008-25 I.R.B.1175 REG-108508-08, 2008-19 I.R.B.923 Revenue Procedures: 2008-1, 2008-1 I.R.B.1 2008-2, 2008-1 I.R.B.90 2008-3, 2008-1 I.R.B.110 2008-4, 2008-1 I.R.B.121 2008-5, 2008-1 I.R.B.164 2008-6, 2008-1 I.R.B.192 2008-7, 2008-1 I.R.B.229 2008-8, 2008-1 I.R.B.233 2008-9, 2008-2 I.R.B.258 2008-10, 2008-3 I.R.B.290 2008-11, 2008-3 I.R.B.301 2008-12, 2008-5 I.R.B.368 2008-13, 2008-6 I.R.B.407 2008-14, 2008-7 I.R.B.435 2008-15, 2008-9 I.R.B.489 2008-16, 2008-10 I.R.B.547 1 A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2007–27 through 2007–52 is in Internal Revenue Bulletin 2007–52, dated December 26, 2007. June 23, 2008ii2008–25 I.R.B. Revenue Procedures— Continued: 2008-17, 2008-10 I.R.B.549 2008-18, 2008-10 I.R.B.573 2008-19, 2008-11 I.R.B.594 2008-20, 2008-20 I.R.B.980 2008-21, 2008-12 I.R.B.657 2008-22, 2008-12 I.R.B.658 2008-23, 2008-12 I.R.B.664 2008-24, 2008-13 I.R.B.684 2008-25, 2008-13 I.R.B.686 2008-26, 2008-21 I.R.B.1014 2008-27, 2008-21 I.R.B.1014 2008-28, 2008-23 I.R.B.1054 2008-29, 2008-22 I.R.B.1039 2008-30, 2008-23 I.R.B.1056 2008-31, 2008-23 I.R.B.1133 Revenue Rulings: 2008-1, 2008-2 I.R.B.248 2008-2, 2008-2 I.R.B.247 2008-3, 2008-2 I.R.B.249 2008-4, 2008-3 I.R.B.272 2008-5, 2008-3 I.R.B.271 2008-6, 2008-3 I.R.B.271 2008-7, 2008-7 I.R.B.419 2008-8, 2008-5 I.R.B.340 2008-9, 2008-5 I.R.B.342 2008-10, 2008-13 I.R.B.676 2008-11, 2008-10 I.R.B.541 2008-12, 2008-10 I.R.B.520 2008-13, 2008-10 I.R.B.518 2008-14, 2008-11 I.R.B.578 2008-15, 2008-12 I.R.B.633 2008-16, 2008-11 I.R.B.585 2008-17, 2008-12 I.R.B.626 2008-18, 2008-13 I.R.B.674 2008-19, 2008-13 I.R.B.669 2008-20, 2008-14 I.R.B.716 2008-21, 2008-15 I.R.B.734 2008-22, 2008-16 I.R.B.796 2008-23, 2008-18 I.R.B.852 2008-24, 2008-18 I.R.B.861 2008-25, 2008-21 I.R.B.986 2008-26, 2008-21 I.R.B.985 2008-28, 2008-22 I.R.B.1029 2008-29, 2008-24 I.R.B.1149 2008-30, 2008-25 I.R.B.1156 Tax Conventions: 2008-8, 2008-6 I.R.B.403 2008-39, 2008-18 I.R.B.867 Treasury Decisions: 9368, 2008-6 I.R.B.382 9369, 2008-6 I.R.B.394 9370, 2008-7 I.R.B.428 9371, 2008-8 I.R.B.447 9372, 2008-8 I.R.B.462 Treasury Decisions— Continued: 9373, 2008-8 I.R.B.463 9374, 2008-10 I.R.B.521 9375, 2008-5 I.R.B.344 9376, 2008-11 I.R.B.587 9377, 2008-11 I.R.B.578 9378, 2008-14 I.R.B.720 9379, 2008-14 I.R.B.715 9380, 2008-14 I.R.B.718 9381, 2008-14 I.R.B.694 9382, 2008-9 I.R.B.482 9383, 2008-15 I.R.B.738 9384, 2008-16 I.R.B.792 9385, 2008-15 I.R.B.735 9386, 2008-16 I.R.B.788 9387, 2008-16 I.R.B.789 9388, 2008-17 I.R.B.832 9389, 2008-18 I.R.B.863 9390, 2008-18 I.R.B.855 9391, 2008-20 I.R.B.945 9392, 2008-19 I.R.B.903 9393, 2008-20 I.R.B.975 9394, 2008-21 I.R.B.988 9395, 2008-22 I.R.B.1031 9396, 2008-22 I.R.B.1026 9397, 2008-22 I.R.B.1025 9398, 2008-24 I.R.B.1143 9399, 2008-25 I.R.B.1157 9400, 2008-24 I.R.B.1139 2008–25 I.R.B.iiiJune 23, 2008 Finding List of Current Actions on Previously Published Items 1 Bulletins 2008–1 through 2008–25 Announcements: 2006-88 Clarified and superseded by Notice 2008-35, 2008-12 I.R.B.647 Notice 2008-36, 2008-12 I.R.B.650 2008-6 Superseded by Ann. 2008-19, 2008-11 I.R.B.624 Notices: 2001-16 Modified by Notice 2008-20, 2008-6 I.R.B.406 2001-60 Modified and superseded by Notice 2008-31, 2008-11 I.R.B.592 2002-44 Superseded by Notice 2008-39, 2008-13 I.R.B.684 2003-51 Superseded by Rev. Proc. 2008-24, 2008-13 I.R.B.684 2004-2 Modified by Notice 2008-52, 2008-25 I.R.B.1166 2004-50 Modified by Notice 2008-52, 2008-25 I.R.B.1166 2006-27 Clarified and superseded by Notice 2008-35, 2008-12 I.R.B.647 2006-28 Clarified and superseded by Notice 2008-36, 2008-12 I.R.B.650 2006-52 Clarified and amplified by Notice 2008-40, 2008-14 I.R.B.725 2006-77 Clarified and amplified by Notice 2008-25, 2008-9 I.R.B.484 2006-85 Obsoleted by T.D. 9400, 2008-24 I.R.B.1139 2006-107 Modified by Notice 2008-7, 2008-3 I.R.B.276 Notices— Continued: 2007-30 Modified and superseded by Notice 2008-14, 2008-4 I.R.B.310 2007-45 Modified by Notice 2008-49, 2008-20 I.R.B.979 2007-48 Obsoleted by T.D. 9400, 2008-24 I.R.B.1139 2007-54 Clarified by Notice 2008-11, 2008-3 I.R.B.279 2008-13 Supplemented by Notice 2008-46, 2008-18 I.R.B.868 2008-27 Clarified, amended, supplemented, and superseded by Notice 2008-41, 2008-15 I.R.B.742 Proposed Regulations: REG-209020-86 Corrected by Ann. 2008-11, 2008-7 I.R.B.445 REG-107592-00 Partial withdrawal by Ann. 2008-25, 2008-14 I.R.B.732 REG-149856-03 Hearing scheduled by Ann. 2008-26, 2008-13 I.R.B.693 REG-143397-05 Corrected by Ann. 2008-53, 2008-23 I.R.B.1137 REG-147290-05 Hearing scheduled by Ann. 2008-43, 2008-19 I.R.B.944 REG-109367-06 Withdrawn by Ann. 2008-41, 2008-19 I.R.B.943 REG-104946-07 Hearing scheduled by Ann. 2008-47, 2008-20 I.R.B.983 REG-113891-07 Hearing scheduled by Ann. 2008-4, 2008-2 I.R.B.269 REG-114126-07 Corrected by Ann. 2008-36, 2008-16 I.R.B.827 Proposed Regulations— Continued: REG-127770-07 Hearing scheduled by Ann. 2008-24, 2008-13 I.R.B.692 REG-133300-07 Hearing scheduled by Ann. 2008-34, 2008-17 I.R.B.849 REG-139236-07 Hearing scheduled by Ann. 2008-42, 2008-19 I.R.B.943 REG-141399-07 Hearing cancelled by Ann. 2008-31, 2008-15 I.R.B.787 Revenue Procedures: 97-36 Modified by Rev. Proc. 2008-23, 2008-12 I.R.B.664 2001-23 Modified by Rev. Proc. 2008-23, 2008-12 I.R.B.664 2002-9 Modified by Rev. Proc. 2008-18, 2008-10 I.R.B.573 Modified and amplified by Rev. Proc. 2008-25, 2008-13 I.R.B.686 2006-9 Modified by Rev. Proc. 2008-31, 2008-23 I.R.B.1133 2007-1 Superseded by Rev. Proc. 2008-1, 2008-1 I.R.B.1 2007-2 Superseded by Rev. Proc. 2008-2, 2008-1 I.R.B.90 2007-3 Superseded by Rev. Proc. 2008-3, 2008-1 I.R.B.110 2007-4 Superseded by Rev. Proc. 2008-4, 2008-1 I.R.B.121 2007-5 Superseded by Rev. Proc. 2008-5, 2008-1 I.R.B.164 2007-6 Superseded by Rev. Proc. 2008-6, 2008-1 I.R.B.192 2007-7 Superseded by Rev. Proc. 2008-7, 2008-1 I.R.B.229 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2007–27 through 2007–52 is in Internal Revenue Bulletin 2007–52, dated December 26, 2007. June 23, 2008iv2008–25 I.R.B. Revenue Procedures— Continued: 2007-8 Superseded by Rev. Proc. 2008-8, 2008-1 I.R.B.233 2007-26 Obsoleted in part by Rev. Proc. 2008-17, 2008-10 I.R.B.549 2007-31 Obsoleted in part by Rev. Proc. 2008-19, 2008-11 I.R.B.594 2007-39 Superseded by Rev. Proc. 2008-3, 2008-1 I.R.B.110 2007-51 Superseded by Rev. Proc. 2008-30, 2008-23 I.R.B.1056 2007-52 Superseded by Rev. Proc. 2008-9, 2008-2 I.R.B.258 2008-13 Corrected by Ann. 2008-15, 2008-9 I.R.B.511 Revenue Rulings: 56-127 Obsoleted by T.D. 9391, 2008-20 I.R.B.945 58-612 Clarified and amplified by Rev. Rul. 2008-15, 2008-12 I.R.B.633 64-250 Amplified by Rev. Rul. 2008-18, 2008-13 I.R.B.674 66-294 Obsoleted by Rev. Rul. 2008-29, 2008-24 I.R.B.1149 67-131 Obsoleted by Rev. Rul. 2008-29, 2008-24 I.R.B.1149 89-42 Modified and superseded by Rev. Rul. 2008-17, 2008-12 I.R.B.626 92-19 Supplemented in part by Rev. Rul. 2008-19, 2008-13 I.R.B.669 97-31 Modified and superseded by Rev. Rul. 2008-17, 2008-12 I.R.B.626 2001-48 Modified and superseded by Rev. Rul. 2008-17, 2008-12 I.R.B.626 Revenue Rulings— Continued: 2005-28 Clarified and superseded by Rev. Rul. 2008-26, 2008-21 I.R.B.985 2007-4 Supplemented and superseded by Rev. Rul. 2008-3, 2008-2 I.R.B.249 2008-22 Modified by Ann. 2008-46, 2008-20 I.R.B.983 Treasury Decisions: 8697 Corrected by Ann. 2008-38, 2008-17 I.R.B.851 9273 Corrected by Ann. 2008-33, 2008-16 I.R.B.826 9362 Corrected by Ann. 2008-9, 2008-7 I.R.B.444 Ann. 2008-12, 2008-7 I.R.B.446 9363 Corrected by Ann. 2008-10, 2008-7 I.R.B.445 9368 Corrected by Ann. 2008-29, 2008-15 I.R.B.786 Ann. 2008-30, 2008-16 I.R.B.825 9375 Corrected by Ann. 2008-16, 2008-9 I.R.B.511 9386 Corrected by Ann. 2008-35, 2008-17 I.R.B.849 2008–25 I.R.B.vJune 23, 2008 June 23, 20082008–25 I.R.B. INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue 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 Superin- tendent 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 andare notincluded 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. ACCESS THE INTERNAL REVENUE BULLETIN ON THE INTERNET You may view the Internal Revenue Bulletin on the Internet at www.irs.gov. Under information for: select Businesses. Under related topics, select More Topics. Then select Internal Revenue Bulletins. 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