us-irs-revenue-rulings-irb-2013-39-pdf•Internal Revenue Bulletin 2013-39 (PDF rendition): IRS Revenue Rulings
Internal Revenue Bulletin 2013-39 (PDF rendition): IRS Revenue Rulings
us-irs-revenue-rulings-irb-2013-39-pdfInternal Revenue Bulletin 2013-39 (PDF rendition): IRS Revenue RulingsGuidance
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Bulletin No. 201 3-39 September 23, 20 13 HIGHLIGHTS OF THIS ISSUE These synopses are intended only as aids to the reader in identifying the subject matter covered. They may not be relied upon as authoritative interpretations. INCOME TAX T.D. 9632, page 241. Final regulations on the requirement to maintain minimum essential coverage under §5000A, which was enacted by the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, as amended by the TRICARE Affirmation Act and Public Law 111–173. These final regulations provide guidance to individual taxpayers on the liability under §5000A for the shared responsibility payment for not maintaining minimum essential coverage and largely finalize the rules in the notice of proposed rulemaking (REG–148500–12) published in the Federal Register (78 FR 7314) on February 1, 2013. T.D. 9633, page 227. These final regulations prevent the duplication of a net loss when loss assets are contributed to a corporation in a sec- tion 351 nonrecognition exchange. Under the regulations, the duplication of a net loss is prevented by reducing the trans- feree-corporation’s basis in the assets transferred, unless the transferor-shareholder elects to reduce its basis in the stock received in the exchange by the amount that would otherwise have been applied to reduce the corporation’s basis in its as- sets. Notice 2005–70 is obsolete. EMPLOYEE PLANS REG–111837–13, page 266. These proposed regulations relate to the requirements for filing certain employee retirement benefit plan statements, returns, and reports on magnetic media. These proposed regulations provide that a plan administrator (or, in certain situations, an employer maintaining a plan) required by the Code or regula- tions to file at least 250 returns during the calendar year that includes the first day of the plan year must use magnetic media to file certain statements, returns, and reports under sections 6057, 6058, and 6059. Comments requested by October 29, 2013. ESTATE TAX Rev. Rul. 2013–19, page 240. Special Use Value; Farms; Interest Rates. The 2013 interest rates to be used in computing the special use value of farm real property for which an election is made under section 2032A of the Code are listed for estates of decedents. ADMINISTRATIVE REG–144990–12, page 264. These proposed regulations amend user fees for installment agreements and offers in compromise. They affect taxpay- ers who wish to pay their liabilities through installment agree- ments and offers in compromise. Comments are requested by September 30, 2013, and a public hearing is scheduled for October 1, 2013. Notice 2013–56, page 262. This notice under sections 6050W and 3406 provides guid- ance on the issuance of CP2100/CP2100As based on Forms 1099–K filed for calendar year 2012 payments. Additionally, the notice provides relief from penalties under sections 6721 and 6722 for incorrect name and taxpayer identification num- ber (TIN) combinations and missing TINs for Forms 1099–K filed for calendar year 2012 payments; and for incorrect name and TIN combinations for Forms 1099–K required to be filed for calendar year 2013 payments. Finding Lists begin on page ii. The IRS Mission Provide Americ a’s taxpayers top-quality service by helping them understa nd and meet their tax responsibilities and en- force the law wi th 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. It is the poli cy of the Service to publish in the Bulletin all sub- stantive ru lings necessary to promote a uniform application of the tax laws , including all rulings that supersede, revoke, mod- ify, or amen d any of those previously published in the Bulletin. All publish ed rulings apply retroactively unless otherwise indi- cated. Pro cedures relating solely to matters of internal man- agement ar e 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.—1986 Code. This part includes rulings and decisions based on provisions of the Internal Revenue Code of 1986. Part II.—Treaties and Tax Legislation. This part is divided into two subparts as follows: Subpart A, Tax Conventions and 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 part includes notices of proposed rulemakings, disbar- ment and 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 cont ents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. September 23, 20132013–39 I.R.B. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 362.— Basis to Corporations T.D. 9633 DEPARTMENT O FTHE TREASURY Internal Re venue Service 26 CFR Parts 1and602 Limitation s on Duplication of Net Built- in Losses AGENCY: In ternal Revenue Service (IRS), Tre asury. ACTION: Fi nal regulations. SUMMARY: T his document contains fi- nal regula tions under section 362(e)(2) of the Intern al Revenue Code of 1986 (Code). The regul ations apply to certain nonrecog- nition tr ansfers of loss property to corpora- tions. Th e regulations affect all parties to the trans action. DATES:Ef fective Date:These final regu- lations a re effective on September 3, 2013. Applicab ility Date:For dates of appli- cability see §1.358–2(d), §1.362–4(j). FOR FURTH ER INFORMATION CONTACT : Theresa A. Abell (202) 622–770 0 (not a toll-free number). SUPPLEM ENTARY INFORMATION: Paperwo rk Reduction Act The coll ection of information con- tained i n these final regulations has been reviewe d and approved by the Office of Managem ent and Budget in accordance with th e Paperwork Reduction Act of 1995 (44 U.S .C. 3507(d)) under OMB control number 1545–2247. The collection of inform ation in these final regulations is in §1.362 –4(d). This information is required by the IRS to verify basis of property trans ferred in certain tax-free transactions when t axpayers make the election pro- vided for under section 362(e)(2)(C). An age ncy may not conduct or sponsor, and a p erson is not required to respond to, a collecti on of information unless the collection of information displays a valid control numbe r. Books or recor ds relating to a collection of informatio n must be retained as long as their cont ents may become material in the administ ration of any internal revenue law. General ly, tax returns and tax return information are confidential, as required by section 6 103. Background Section 362(e) (2) was enacted in the American Jobs C reation Act of 2004 (Pub- lic Law 108–357 , 188 Stat. 1418 (2004)) in order to prev ent the duplication of loss in certai n corporate nonrecognition transfers. Se ction 362(e)(2) applies to corporate acq uisitions of property with a net built-in l oss in transactions described in section 36 2(a) (transactions to which section 351 a pplies and acquisitions of property as p aid-in surplus or contribu- tions to capi tal), but only if the transaction is not descr ibed in section 362(e)(1) (trans- actions in w hich there is an importation of built-in loss). When a transaction is subject to s ection 362(e)(2), the acquiring corporatio n’s basis in loss property is re- duced by th e property’s allocable portion of the tran sferor’s net built-in loss. See section 36 2(e)(2)(B). However, under sec- tion 362(e )(2)(C), the parties to the trans- action can make an irrevocable election to apply t he reduction to the transferor’s basis in t he stock received in the exchange instead o f to the transferee’s basis in the property received in the exchange. Notice 20 05–70, 2005–2 C.B. 694, was publi shed on October 11, 2005, to provide i nterim guidance for making an electio ntoapplysection362(e)(2)(C). See §601 .601(d)(2) of this chapter. Under Notice 2 005–70, an election would be conside red effective once a certification was incl uded by the transferor or, if the transf eror is a controlled foreign corpora- tion (C FC), by all of its controlling U.S. shareh olders as defined in §1.964–1(c)(5), on a tim ely filed original Federal income tax ret urn (designated a “U.S. return” un- der th e final regulations) for the year of the transacti on. Notice 2005–70 expressly permitted tax payers to make a protective election that would have no effect on a transaction that is ultimately not subject to section 36 2(e)(2). The Notice also al- lowed other s tatements to be treated as effective el ections if sufficient informa- tion was pro videdtotheIRSwithrespect to the trans fer and parties. Proposed re gulations under section 362(e)(2) w ere published in theFederal Register(7 1 FR 62067) on October 23, 2006. Follo wing the publication of the proposed r egulations, the IRS received questions concerning the application of section 362(e)(2) to transactions in- volving S c orporations and partnerships and concer ning the filing of the section 362(e)(2 )(C) election, particularly with respect t o transactions between persons outside t he United States. The IRS also has becom e aware of certain ambiguities (describ ed later in this preamble) relat- ingtoth e proper operation of the statute. Two writ ten comments were submitted; no publi c hearing was requested or held. Summary of Proposed Regulations 1.General Application of Section, Interaction with Other Law The propos ed regulations included a number of s pecific provisions regard- ing the gen eral operation of the statutory framework , such as provisions stating that secti on 362(e)(2) is to be applied on a trans feror-by-transferor basis; that a transac tion is treated as subject to sec- tion 362( e)(2) to the extent it is not a transfer of net built-in loss property under section 3 62(e)(1); that gain recognized by the tr ansferor is taken into account in determi ning the transferee’s basis imme- diately after the transfer; and that section 362(e)( 2) applies to any transaction de- scribed in section 362(a) without regard to whethe r the transaction is also described in sectio n 362(b) or any other section. These provis ions responded to inquiries from practi tioners concerning section 362(e)(2) and its interaction with generally applica- ble pr ovisions of the Code. 2013–39 I.R.B.227September 23, 2013 2.Exceptions From the Application of Section 362(e)(2) The proposed regulations included two exceptions under which a transaction would be treated as not subject to section 362(e)(2) notwithstanding that the transac- tion is generally described in that section. Under the first exception, if a transfer is not relevant for Federal income tax pur- poses at the time it occurs and it does not become relevant for Federal income tax purposes at any time within two years of the transfer, then, solely for purposes of determining whether section 362(e)(2) ap- plies to the transaction, the property ex- changed would be deemed to have a basis equal to its fair market value (designated value under the final regulations) imme- diately after the transaction. As a result, the transfer would not be subject to section 362(e)(2). This exception reflected a con- cern that transferors not anticipating that a transfer would be relevant for Federal in- come tax purposes would not be likely to undertake the valuation and record-keep- ing necessary to comply with the statute. However, if a transfer that was not rele- vant for Federal income tax purposes when it occurred became relevant for Federal income tax purposes at any time within two years of the transfer, the administra- tive burden of compliance would not be unreasonable, and, if a transaction was un- dertaken with a view to reducing or avoid- ing Federal income tax, the transferor must expect the transfer to be relevant for Fed- eral income tax purposes. Because relief would be either unnecessary or inappropri- ate in either case, relief was not extended to those cases. Under the second exception, a trans- action would not be subject to section 362(e)(2) to the extent that the transferor distributes the stock received in the trans- action and, in the distribution, no gain or loss was recognized and no person takes the stock or other property with a basis determined by reference to the transferor’s basis in the distributed stock. This relief reflected a determination that, to the ex- tent there is no duplicated loss that could be recognized by any taxpayer, section 362(e)(2) should not apply to the transac- tion. 3.Securities received without the recognition of gain or loss Section 362(e)(2) is silent with re- spect to securities received without the recognition of gain or loss in a transaction otherwise subject to section 362(e)(2). However, the IRS and Treasury Depart- ment determined that the statutory purpose of preventing loss duplication would be circumvented if section 362(e)(2) did not apply to securities issued in such cases. For example, if loss property is transferred in exchange for stock and securities and any part of the securities are retained fol- lowing the distribution of the stock under section 355, loss would be duplicated and preserved in the retained securities. To prevent this circumvention of the statu- tory purpose, the proposed regulations defined the term “stock” to include both stock and securities for purposes of section 362(e)(2). 4.Liabilities In general, as illustrated inExample 5 in paragraph (d) of §1.362–4 of the pro- posed regulations, liabilities assumed in the transaction do not affect the applica- tion of section 362(e)(2). However, the proposed regulations provided that, if a section 362(e)(2)(C) election is made, the reduction to stock basis is limited to the amount that the transferee would other- wise reduce its basis in the transferred as- sets. This was intended to prevent the re- duction of stock basis attributable to con- tingent liabilities associated with a trade or business, for whichbasis is specifically preserved under section 358(h)(2)(A). 5.The Section 362(e)(2)(C) Election The proposed regulations adopted the general approach of Notice 2005–70, treat- ing an election as effective if the trans- feror files a certification (designated the “election statement” inthe proposed reg- ulations) on its U.S. return for the year of the transfer or, if the transferor is a CFC, if the controlling U.S. shareholders all file the election statement on or with their U.S. returns. The proposed regula- tions also adopted the rule allowing a pro- tective election. In addition, the proposed regulations substantially expanded the guidance pro- vided in Notice 2005–70. The proposed regulations added an express requirement that the transferor and the transferee ex- ecute a written, binding agreement. The proposed regulations also included guid- ance on the filing of an election statement in circumstances not addressed in the No- tice (for example, if the transferor was not requiredtofileaU.S.returnandwasnota CFC) and provided that the statement must be filed in accordance with the regulations in order for the section 362(e)(2)(C) elec- tion to be effective. In addition, the proposed regulations provided that the basis tracing provisions in §1.358–2 would not apply to transac- tions in which a section 362(e)(2)(C) elec- tion is made. Thus, if A transferred mul- tiplesharesofXstocktoYinatrans- action subject to section 362(e)(2), the Y shares received in the transaction would each be allocated an equal portion of A’s aggregate basis in the X shares transferred, without regard to A’s bases in the individ- ual shares of X stock surrendered. As a result, there would be no disparity among A’s bases in its Y shares following a sec- tion 362(e)(2)(C) election. This rule was intended to prevent apreservation of loss that would be contrary to the objective of section 362(e)(2). 6.Partnerships and S Corporations The proposed regulations con- firmed that any reduction under section 362(e)(2)(C) to the basis in stock received by a partnership or S corporation in a transaction subject to section 362(e)(2) is an expenditure or expense of the transferor partnership or S corporation. As a result, the section 362(e)(2)(C) stock basis reduc- tion would cause a reduction to the basis of the partner in its interest in the partnership or the S corporation shareholder’s basis in its stock of the S corporation. Summary of Comments and Guidance In general, the commenters concurred with the positions taken in the proposed regulations, but requested that the overall operation of the statutebeclarified. For example, since the issuance of the pro- posed regulations, the IRS has become aware of certain questions relating to the allocation of net built-in loss where gain is recognized and multiple properties are transferred in the transaction. In addition, practitioners requested further guidance September 23, 20132282013–39 I.R.B. on the application of section 362(e)(2) to transactions that are also subject to sec- tion 362(e)(1), to transactions involving partnerships and S corporations, and to transactions between persons not con- nected with the United States, particularly with regard to the making of the section 362(e)(2)(C) election. Accordingly, these final regulations generally adopt the substantive rules of the proposed regulations. In addition, the final regulations revise the structure of the proposed rules to clarify the application of section 362(e)(2) and to provide a frame- work that will better coordinate with the provisions of section 362(e)(1) and the regulations that are to be promulgated un- der that section. These are not substantive changes from the proposed regulations but aresolelyintendedtosimplifytheappli- cation of section 362(e)(2). The material changes and additions to the proposed regulations are as follows: 1.Clarification of Overall Application of Section 362(e)(2) The final regulations adopt a general operative rule and related definitions to facilitate the identification of transactions that are subject to section 362(e)(2) and to then determine the tax treatment required by this section. This approach responds to comments requesting more clarity on the general operation of the provision. The general operative rule set forth in the final regulations is that whenever a person (Transferor) transfers property to a corporation (Acquiring) in a loss duplica- tion transaction, Acquiring’s basis in each loss duplication property (as determined without regard to section 362(e)(2)) is re- duced by the property’s allocable portion of Transferor’s net built-in loss. The final regulations define the term “loss duplication transaction” as any sec- tion 362(a) transfer in which Acquiring’s aggregate basis in the property transferred by Transferor would exceed the aggregate value of such property immediately after the transaction. The term “loss duplica- tion property” refers to individual property transferred in the loss duplication transac- tion that Acquiring would take with a basis that would exceed value immediately after the transfer. Finally, the term “Transferor’s net built-in loss” is defined as the excess of Acquiring’s aggregate basis in property received from Transferor over the aggre- gate value of such property immediately after the transaction. For purposes of ap- plying each of these definitions, Acquir- ing’s basis in property is determined im- mediately after the transfer, disregarding section 362(e)(2) but taking into account all other applicable rules, including section 362(e)(1). The final regulations thus incorpo- rate in the operative rules and definitions the transferor-by-transferor approach and other general provisions that reflect the statutory constructas implemented by the proposed regulations, including that a transfer can be subject to both section 362(e)(1) and section 362(e)(2) and the priority given to section 362(e)(1) in such cases. These principles are further illus- trated in the examples. 2.Additional Definitions Several questions were raised concern- ing whether certain persons were required to file a U.S. return within the meaning of the regulations. To address these con- cerns, the final regulations define the term “U.S. return” as a return of income that must be filed under section 6012 or an in- formation return that must be filed under Subtitle F, Chapter 61, Subchapter A, Part III of the Code (sections 6031 and follow- ing). The final regulations further provide that the requirement to file the return must be unconditional. Thus, the term does not include forms that are merely elective to receive a particular tax treatment, such as statements filed to make an election or to reduce or avoid withholding by a person not otherwise required to file a U.S. re- turn. These changes are intended to elimi- nate uncertainty as to whether a person has a filing requirement for purposes of deter- mining whether a transaction qualifies for relief as a transaction outside the United States. The final regulations also clarify the time for filing and the person that must file a statement that the Transferor and Ac- quiring are making an election under sec- tion 362(e)(2)(C) (designated as a “Sec- tion 362(e)(2)(C) Statement” under the fi- nal regulations). The Section 362(e)(2)(C) Statement is described more fully later in this preamble. The final regulations modify the defi- nition of the term “controlling U.S. share- holder.” Under the final regulations, only persons owning a direct interest in the CFC or an interest treated as owned by reason of an interest in a partnership, estate, trust, or corporation are treated as controlling U.S. shareholders. This change reflects a con- cern that, for this purpose, a rule treating persons as controlling U.S. shareholders solely by reason of the family attribution rules presents undue administrability con- cerns and can cause inappropriate results in certain cases. 3.Exception for Transactions Outside the U.S. Tax System The IRS and Treasury Department con- tinue to believe that administrative relief is appropriate when the parties to the trans- fer do not expect the transfer to be rele- vant for Federal tax purposes, and in fact the transfer does not become relevant for Federal tax purposes within two years of the transfer. Accordingly, the final regula- tions retain the rule in the proposed regu- lations excepting transactions wholly out- side the U.S. tax system. However, the fi- nal regulations conform the formulation of the rule to the formulation of the exception for transactions in which duplicated loss is eliminated. That is, the rule in the fi- nal regulations does not presume that basis and value are equal (with the result that no loss is transferred and so section 362(e)(2) does not apply), as in the proposed regula- tions, but instead provides simply that sec- tion 362(e)(2) will not apply to a qualify- ing transaction. Like the proposed regu- lations, the final regulations provide that a transaction will qualify for this excep- tion only if the transaction is between per- sons not connected to the United States, the transaction does not become relevant for Federal tax purposes within two years of the transfer, and the transaction is not undertaken pursuant to a plan to reduce or avoid Federal taxes. 4.Controlled Foreign Partnerships (CFPs) The IRS and Treasury Department have determined that, for purposes of the ad- ministrative relief granted for transactions outside the United States, as well as for purposes of determining the person that must file a Section 362(e)(2)(C) State- ment, CFPs should be treated in the same manner as CFCs. First, the reason that 2013–39 I.R.B.229September 23, 2013 CFCs are ineligible for relief is that a CFC could not reasonably expect a transfer to have no relevance for Federal income tax purposes, and so the administrative relief is not warranted. The same is true with re- spect to CFPs. Second, with respect to the filing of a Section 362(e)(2)(C) Statement, although a CFP may not be required to file a U.S. return, the reporting U.S. partners of a CFP have a relationship to the CFP, and a filing obligation with respect to the CFP’s activities, that is materially the same as that of the controlling U.S. shareholders of a CFC. Thus, the reporting U.S. partners of a CFP have the same reporting require- ments under these final regulations as the controlling U.S. shareholders of a CFC. For purposes of these final regulations, a partnership is a CFP if it is treated as such for purposes of section 6038; a CFP’s reporting U.S. partners are generally those persons that would be required to file an information return with respect to the CFP under section 6038. 5.Liabilities The final regulations retain the ap- proach in the proposed regulations that generally disregardsliability assumptions. Example 5in paragraph (d) of the pro- posed regulations §1.362–4 is expanded, however, to illustrate more fully the appli- cation of section 362(e)(2) to transactions in which fixed and contingent liabilities are assumed. SeeExample 5in paragraph (h) of the final regulations §1.362–4. However, in both written comments and informal inquiries, practitioners have raised concerns about the effect of this rule when the property transferred is an interest in a partnership with liabilities. In particular, practitioners are concerned be- cause partnership liabilities increase each partner’s basis in its partnership interest but do not give rise to a corresponding in- crease in the value of those interests. The result can be the appearance of a built-in loss. To address this problem, the final reg- ulations generally adopt the approach proposed by commentators, specifically, by modifying the definition of the term “value” (generally, fair market value) to take liabilities into account when deter- mining whether a partnership interest is a loss asset. However, because there can be differences betweenTransferor’s share of partnership liabilities and Acquiring’s share of partnership liabilities, the final regulations provide that the value of a partnership interest is the sum of cash that Acquiring would receivefor such interest, increased by any §1.752–1 liabilities (as defined in §1.752–1(a)(4)) of the partner- ship that are allocated to Acquiring with regard to such transferred interest under section 752. The final regulations include an example that illustrates the application and effect of this rule. SeeExample 8(ii) in paragraph (h) of the final regulations §1.362–4. The final regulations also clar- ify that any section 743(b) adjustment to be made as a result of the transaction is made after any section 362(e) basis adjust- ment. 6.Elections under Section 362(e)(2)(C) Since the enactment of section 362(e)(2), the questions most frequently asked of the IRS concern the making of the section 362(e)(2)(C) election, notwithstanding the publication of Notice 2005–70 and the proposed regulations. Accordingly, the final regulations not only generally adopt the rules set forth in Notice 2005–70 and in the proposed regulations, but they also expand those rules signifi- cantly to address the questions raised. a. Section 362(e)(2)(C) Statement To begin, the final regulations retain the fundamental structure of the proposed reg- ulations. Thus, under the final regulations, a written, binding agreement to make a section 362(e)(2)(C)election must be ex- ecuted by Transferor and Acquiring, and a Section 362(e)(2)(C) Statement must be filed in accordance with the regulations. A section 362(e)(2)(C) election is effective only if both conditions are met. The final regulations do not prescribe a particular form for the agreement to make the section 362(e)(2)(C) election; however, the final regulations do require the written, binding agreement to be in effect prior to the time a Section 362(e)(2)(C)Statement is filed. The final regulations generally adopt the structure of the proposed regulations regarding the time and manner of filing of the Section 362(e)(2)(C) Statement. Thus, under the final regulations, the statement is filed by Transferor (if Transferor is oth- erwise required to file a U.S. return for the year of the transaction) or by all of Transferor’s controlling U.S. shareholders or reporting U.S. partners (if Transferor is a CFC or CFP at the time of the transac- tion and is not otherwise required to file a U.S. return). Further, if Transferor is not otherwise required to file a U.S. return and is not a CFC or CFP, then the statement is filed by Acquiring (if Acquiring is other- wise required to file a U.S. return in the year of the transaction) or by all of Acquir- ing’s controlling U.S. shareholders (if Ac- quiring is a CFC at the time of the transac- tion and is not otherwise required to file a U.S. return). Unlike the proposed regulations, the fi- nal regulations do not require or permit the filing of the Section 362(e)(2)(C) State- ment by a U.S. person (as defined in sec- tion 7701(a)(30)) that is not otherwise re- quired to file a U.S. return. This change was made because these regulations do not create an independent filing requirement, and not all U.S. persons would otherwise be required to file a U.S. return. b. Neither party able to file a Section 362(e)(2)(C) Statement Like the proposed regulations, the final regulations provide rules regarding the fil- ingofaSection362(e)(2)(C) Statement if neither Transferor, Acquiring, nor any of their shareholders would be required to file the statement at the time of the transaction but at some later time either Transferor or Acquiring becomes a person required to file a U.S. return or a CFC, or the stock or loss duplication property is acquired by such a person or a CFC in a transferred basis transaction. For this purpose, the fi- nal regulations expand the proposed rule to treat CFPs in the same manner as CFCs. The final regulations expand the pro- posed rules in two respects. First, the fi- nal regulations provide that, if a person holds property received in a transaction with a basis determined directly or indi- rectly by reference to the basis of loss du- plication property or stock received in a loss duplication transaction, the filing re- quirements will treat such person as Trans- ferororAcquiring(asapplicable)forpur- poses of determining who must file a Sec- tion 362(e)(2)(C) Statement and when. Second, the final regulations provide that a Section 362(e)(2)(C) Statement must be filed with a U.S. return (or U.S. returns) September 23, 20132302013–39 I.R.B. for the first taxable year in which property with a basis determined by reference to the basis of loss duplication property or stock received in a loss duplication transaction is acquired by a person required to file a U.S. return, a CFC, or a CFP. If, in the same taxable year, more than one person has an event that causes such basis to become rel- evant for U.S. tax purposes, the Section 362(e)(2)(C) Statement must be filed by all such persons with their U.S. return for that first year. These two changes were determined necessary to prevent transactions from qualifying for the two-year exception for transactions outside the U.S. tax system if the basis of property exchanged in a transaction becomes relevant for U.S. tax purposes within two years of the transac- tion, as it would not be unduly burdensome to require the valuation necessary to com- ply with section 362(e)(2) in such a case. These rules are expected to have limited application, inasmuch as they will gener- ally only apply if, within two years of the transaction, a party to the transaction be- comes a person required to file a U.S. re- turn, a CFC, or a CFP, or such a person acquires the loss duplication property or stock received in a lossduplication trans- action in a transferred basis transaction. These rules will also apply in the limited situations in which Transferor is a U.S. person not otherwise required to file a U.S. return and Acquiring is neither required to file a U.S. return, a CFC, nor a CFP (such a case would not qualify for the two-year exception for transactions outside the U.S. tax system because a U.S. person is a party to the transaction). 7.Transactions Involving Partnerships and S Corporations Like the proposed regulations, the fi- nal regulations expressly confirm that any reduction to a transferor’s basis in Acquiring stock by reason of a section 362(e)(2)(C) election is an expenditure or expense under section 705(a)(2)(B) (if Transferor is a partnership) and under section 1367(a)(2)(D) (if Transferor is an S corporation). However, in response to questions raised with regard to the pro- posed regulations, the final regulations provide further guidance on the interac- tion between section 362(e)(2) and both subchapter K and subchapter S. Specif- ically, the final regulations clarify that no stock basis reduction is required un- der section 1367(a)(2)(D) by reason of a reduction to the S corporation’s basis in acquired assets if a section 362(e)(2)(C) election is not made. Inaddition, the final regulations include examples illustrating the consequences of transfers to and by S corporations, as well as transfers by part- nerships. For example, practitioners raised concerns that S corporation shareholders electing to reduce the basis of their S cor- poration stock under section 362(e)(2)(C) may inadvertently eliminate their loss completely when the transferred asset is sold. The IRS and Treasury Department recognize that the elimination of any tax benefit from the economic loss can result in such cases and, to alert taxpayers to the potential elimination of loss, the final regulations include an example to illus- trate the application of section 362(e)(2) to transfers made both with and without the election under section 362(e)(2)(C). See Example 9in paragraph (h) of the final regulations §1.362–4. 8.Examples The final regulations include revised and expanded examples based on those in the proposed regulations. For example, in response to questions about the scope of the application of section 362(e)(2) to re- organizations, the final regulations include not only examples from the proposed reg- ulations illustratingthe application of sec- tion 362(e)(2) to transactions qualifying as both section 351 transactions and reorga- nizations, they also include an example il- lustrating the nonapplicability of section 362(e)(2) to triangular reorganizations that do not include a transfer to which section 362(a) applies. 9.Other Requests for Comments in the Proposed Regulations Although the preamble to the proposed regulations invited comments concern- ing whether special rules were needed to address the interaction of section 362(e)(2) and section 336(d) when a sec- tion 362(e)(2)(C) election is made, and whether the regulations should deem a section 362(e)(2)(C)election in the case of a section 304 transaction, no comments were received regarding these issues. Ac- cordingly, no special rules addressing these issues are included in the final reg- ulations. 10.Effective/applicability date These final regulations generally adopt the proposed effective date and thus are applicable to transactions occurring after September 3, 2013. However, the final regulations modify the proposed effective date to provide that the final regulations do not apply to transactions after Septem- ber 3, 2013, that were effected pursuant to a binding agreement that was in ef- fect prior to September 3, 2013, and at all times thereafter. In addition, the final reg- ulations provide that taxpayers may apply these rules to any transaction occurring af- ter October 22, 2004. 11.Revision of §602.101, Table of OMB Control Numbers This Treasury Decision revises §602.101 of this chapter (OMB Control Numbers under Paperwork Reduction Act) to include the OMB control num- ber 1545–2247 issued with respect to the collection of information in this Treasury Decision, as well as OMB control number 1545–2125 issued with respect to the col- lections of information in §§1.336–2 and 1.336–4 (TD 9619, 78 FR 28467) May 15, 2013. Effect on Other Documents The following publication is obsolete as of September 3, 2013: Notice 2005–70 (2005–2 C.B. 694). Special Analyses It has been determined that this Trea- sury decision is not asignificant regula- tory action as defined in Executive Order 12866, as supplemented by Executive Or- der 13563. Therefore, a regulatory as- sessment is not required. Further, it is hereby certified that these final regulations will not have a significant economic im- pact on a substantial number of small enti- ties. This certification is based on the fact that the collection of information in these regulations merely provides a mechanism whereby, once a transferor and transferee have agreed that it would be advantageous to elect the special basis treatment afforded under section 362(e)(2)(C), the transferor 2013–39 I.R.B.231September 23, 2013 (or in limited cases the transferee) can re- port the existence of the agreement, and minimal identifying information regarding the transaction and the parties, on its return in order to make the election effective. The minimal identifying information should be readily available to the parties and the pro- fessional skills that would be necessary to make the election would be the same as those required to prepare a return for the small business. Accordingly, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, these final regulations, as well as the proposed regulations preceding these final regulations, were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no com- ments were received. Drafting Information The principal author of these regula- tions is Jean R. Broderick of the Office of Associate Chief Counsel (Corporate), IRS. However, other personnel from the IRS and Treasury Department participated in their development. ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR parts 1 and 602 are amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding an entry for §1.362–4 to read as follows: Authority: 26 U.S.C. 7805 * * * Section 1.362–4 also issued under 26 U.S.C. 362(e)(2)(C)(ii). * * * Par. 2. Section 1.358–2 is amended by revising paragraph (a)(2)(viii) and adding a new sentence at the end of paragraph (d) to read as follows: §1.358–2 Allocation of basis among nonrecognition property. (a) * * * (2) * * * (viii) This paragraph (a)(2) shall not apply to determine the basis of a share of stock or security received by a share- holder or security holder in an exchange describedinbothsection351andeither section 354 or 356, if, in connection with the exchange— (A) The shareholder or security holder exchanges property for stock or securities in an exchange to which neither section 354 nor section 356 applies; (B) The shareholder or security holder exchanges property for stock or securities in a transaction for which an election to apply section 362(e)(2)(C) is in effect; or (C) Liabilities of the shareholder or se- curity holder are assumed. ***** (d)Effective/applicability date.*** However, paragraph (a)(2)(viii) of this section applies only to exchanges and dis- tributions of stock occurring on or after September 3, 2013; taxpayers may also apply paragraph (a)(2)(viii) of this section to transactions occurring after October 22, 2004. Par. 3. Section 1.362–4 is amended by revising the section heading and paragraph (a)(1), and adding paragraphs (b) through (j) to read as follows: §1.362–4 Basis of loss duplication property. (a)Purpose and scope—(1)In general. The purpose of section 362(e)(2) and this section is to prevent the duplication of net loss in transfers to which section 351 applies, capital contributions, and paid-in surplus (each, a section 362(a) transac- tion). See paragraph (g) of this section for definitions of terms used in this section. (2) * * * (b)Basis determinations under section 362(e)(2) and this section. Notwithstand- ing section 362(a), if a corporation (Ac- quiring) receives loss duplication property (as defined in paragraph (g)(1) of this sec- tion) from a person (Transferor) in a loss duplication transaction (as defined in para- graph (g)(2) of thissection), Acquiring’s basisinsuchpropertyisequaltotheba- sis of the property determined without re- gard to section 362(e)(2) and this section (as described in paragraph (g)(1)(ii) of this section), reduced by the property’s alloca- ble portion of Transferor’s net built-in loss (as defined in paragraph (g)(3) of this sec- tion). If more than one Transferor trans- fers property to a corporation in a sec- tion 362(a) transaction, whether and the extent to which section 362(e)(2) and this section apply is determined separately for each Transferor. (c)Exceptions—(1)Transactions in which net built-in loss is eliminated with- out recognition. Section 362(e)(2) does not apply to a transaction to the extent that— (i) Without recognizing gain or loss, Transferor distributesthe Acquiring stock received in the transaction; and (ii) Upon completion of the transac- tion, no person holds Acquiring stock or any other asset with a basis determined, in whole or in part, by reference to Trans- feror’s basis in the distributed Acquiring stock. (2)Certain transactions outside of the United States. Section 362(e)(2) does not apply to a transaction if— (i) Neither Transferor nor Acquiring is a U.S. person (as defined in section 7701(a)(30)), a person otherwise required tofileaU.S.returnfortheyearofthe transaction, a controlled foreign corpora- tion (CFC, as defined in paragraph (g)(7) of this section), or a controlled foreign partnership (CFP, as defined in paragraph (g)(9) of this section) on the date of the transaction; (ii) The transfer occurs more than two years prior to the date of any event de- scribed in paragraph (d)(3)(ii)(E), (F), or (G) of this section; and (iii) The original transaction and the event or events described in paragraph (d)(3)(ii)(E), (F), or (G) of this section werenotenteredintowithaviewtore- ducing or avoiding the Federal income tax liability of any person by avoiding the application of section 362(e)(2) and this section to the original transaction. (d)Election to reduce Transferor’s stock basis instead of Acquiring’s asset basis—(1)In general.Inlieuofmaking the basis reductions otherwise required under paragraph (b) of this section, Trans- feror and Acquiring may elect to reduce Transferor’s basis in Acquiring stock that is received in the transaction without the recognition of gain or loss (the sec- tion 362(e)(2)(C) election). The section 362(e)(2)(C) election may be made protec- tively and will have no effect to the extent that property transferred in the transaction is determined not to be subject to section 362(e)(2) and this section. However, the election is irrevocable once it is made. A September 23, 20132322013–39 I.R.B. section 362(e)(2)(C) election is made and effective if— (i) Prior to the filing of a Section 362(e)(2)(C) Statement (described in para- graph (d)(3)(i) of this section), Transferor and Acquiring enter into a written, bind- ing agreement to elect to apply section 362(e)(2)(C); and (ii) The Section 362(e)(2)(C) Statement is filed in accordance with the provisions of paragraph (d)(3) of this section. (2)Effect of section 362(e)(2)(C) elec- tion. If a section 362(e)(2)(C) election is made and in effect— (i) An amount equal to the portion of Transferor’s net built-in loss (as defined in paragraph (g)(3) of this section) that would otherwise be applied to reduce asset basis under paragraph (b) of this section is allo- cated among the Acquiring shares received or deemed received in the exchange (in proportion to the value of such shares) and applied to reduce Transferor’s basis (deter- mined without regard to section 362(e)(2) and this section) in each such share; and (ii) Acquiring’s basis in loss duplication property received from Transferor in the transaction is not determined under section 362(e)(2) and this section. (3)Section 362(e)(2)(C) Statement—(i) Form and contents of statement. The Sec- tion 362(e)(2)(C) Statement is to be titled “Section 362(e)(2)(C) Statement.” The Section 362(e)(2)(C) Statement must— (A) Identify (by name and tax identifi- cation number, if any) Transferor and Ac- quiring; (B) State that Transferor and Acquiring have entered into a written, binding agree- ment to elect to apply section 362(e)(2)(C) as required in paragraph (d)(1)(i) of this section; and (C) State the date of the transaction (or, if the transaction includes transfers on more than one date, then the dates of all transfers) to which the election applies. (ii)Filing the Section 362(e)(2)(C) Statement. In general, the Section 362(e)(2)(C) Statement is filed by the person or entity described in the applica- ble paragraph of this paragraph (d)(3)(ii). Thus, if Transferor is a partnership, S corporation, trust (including a subpart E trust), or other pass-through entity, or Ac- quiring is an S corporation, the entity (and not the partners, shareholders, or other persons having an interest in the entity or its property) is the person that must file the Section 362(e)(2)(C) Statement, without regard to whether such entity is foreign or domestic. However, in the case of a CFC or CFP, the controlling U.S. shareholders of the CFC or the reporting U.S. partners of the CFP, respectively, file the Section 362(e)(2)(C) Statement. (A)Transferor is a person required to file a U.S. return. If Transferor is a per- sonrequiredtofileaU.S.returnforthe year of the transfer, Transferor must in- clude the Section 362(e)(2)(C) Statement on or with its timely filed (including ex- tensions) original U.S. return for the tax- able year in which thetransfer occurred. (B)Transferor is a CFC or CFP and not required to file a U.S. return. If para- graph (d)(3)(ii)(A)of this section does not apply and Transferor is either a CFC or a CFP on the date of the transfer, all of Transferor’s controlling U.S. share- holders (in the case of a CFC) or all of Transferor’s reporting U.S. partners (in the case of a CFP) must include the Section 362(e)(2)(C) Statement on or with their timely filed (including extensions) origi- nal U.S. returns for their taxable years in which the transfer occurred. (C)Transferor is not a person required to file a U.S. return, a CFC, or a CFP, but Acquiring is required to file U.S. re- turn. If paragraphs (d)(3)(ii)(A) and (B) of this section do not apply and Acquiring is a person required to file a U.S. return for the year of the transfer, Acquiring must in- clude the Section 362(e)(2)(C) Statement on or with its timely filed (including ex- tensions) original U.S. return for the tax- able year in which thetransfer occurred. (D)Transferor is not a person required to file a U.S. return, a CFC, or a CFP, Ac- quiring is not required to file a U.S. re- turn, but Acquiring is a CFC.If paragraphs (d)(3)(ii)(A) through (C) of this section do not apply and Acquiring is a CFC on the date of the transfer, all of Acquiring’s controlling U.S. shareholders must include the Section 362(e)(2)(C) Statement on or with their timely filed (including exten- sions) original U.S. returns for their tax- able years in which the transfer occurred. (E)Neither Transferor nor Acquiring isapersonrequiredtofileaU.S.return, aCFC,oraCFP,butTransferorlater becomes a person required to file a U.S. return, a CFC, or a CFP. If paragraphs (d)(3)(ii)(A) through (D) of this section do not apply and Transferor becomes a per- son required to file a U.S. return, a CFC, or a CFP, Transferor (if required to file a U.S. return), all of Transferor’s control- ling U.S. shareholders (if Transferor be- comes a CFC not otherwise required to file a U.S. return), or all of Transferor’s reporting U.S. partners (if Transferor be- comes a CFP not otherwise required to file a U.S. return) must include the Section 362(e)(2)(C) Statement on or with their timely filed (including extensions) orig- inal U.S. returns fortheir taxable years in which an event described in this para- graph (d)(3)(ii)(E) first occurs. For pur- poses of this paragraph (d)(3)(ii)(E), the term Transferor includes any person hold- ing property with a basis determined di- rectly or indirectly by reference to Trans- feror’s basis in the Acquiring stock re- ceived in the transaction. (F)Transferor is not and does not become a person required to file a U.S. return, a CFC, or a CFP, Acquiring is not, but later becomes either a person required to file a U.S. return, a CFC, or a CFP. If paragraphs (d)(3)(ii)(A) through (E) of this section do not apply and Acquir- ing becomes a person required to file a U.S. return, a CFC, or a CFP, Acquiring (if required to file a U.S. return), all of Acquiring’s controlling U.S. shareholders (if Acquiring becomes a CFC not oth- erwise required to file a U.S. return), or all of Acquiring’s reporting U.S. part- ners (if Acquiring becomes a CFP not otherwise required to file a U.S. return) must include the Section 362(e)(2)(C) Statement on or with their timely filed (in- cluding extensions) original U.S. returns for their taxable years in which an event described in this paragraph (d)(3)(ii)(F) first occurs. For purposes of this para- graph (d)(3)(ii)(F), the term Acquiring includes any person holding property with a basis determined directly or indirectly by reference to Acquiring’s basis in loss duplication property received in the trans- action. (G)Transferor and Acquiring are not anddonotbecomeapersonrequiredto fileaU.S.return,aCFC,oraCFP,but the basis of the loss duplication property or Acquiring stock later becomes relevant for Federal tax purposes. If paragraphs (d)(3)(ii)(A) through (F) of this section do not apply and, in a transferred basis transaction, a person required to file a U.S. return, a CFC, or a CFP acquires either 2013–39 I.R.B.233September 23, 2013 loss duplication property or Acquiring stock that was received in the loss duplica- tion transaction, or any property the basis ofwhichisdeterminedinwholeorinpart by reference to any such property or stock, all such persons (or, in the case of a CFC or CFP not required to file a U.S. return, all the controlling U.S. shareholders or all the reporting U.S. partners, as applicable) must include the Section 362(e)(2)(C) Statement on or with their timely filed (in- cluding extensions) original U.S. returns for their first taxable year(s) in which there occurs an event or events described in this paragraph (d)(3)(ii)(G). (e)Transfers by partnerships and S corporations—(1)Transfers by partner- ships. If a partnership transfers property in a loss duplication transaction with respect to which a section 362(e)(2)(C) election is made, the resulting reduction to the partnership’s basis in the Acquiring stock received in exchange for the loss duplica- tion property is treated as an expenditure of the partnership described in section 705(a)(2)(B). (2)Transfers by S corporations.IfanS corporation transfers property in a loss du- plication transaction with respect to which a section 362(e)(2)(C) election is made, the resulting reduction to the S corporation’s basis in the Acquiring stock received in ex- change for the loss duplication property is treated as an expense of the S corporation described in section 1367(a)(2)(D). (f)Transfers to S corporations.Ifaper- son transfers property to an S corporation in a loss duplication transaction, any re- sulting reduction under section 362(e)(2) and this section to the S corporation’s ba- sis in the property received is not treated as an expense of the S corporation described in section 1367(a)(2)(D). (g)Definitions. For purposes of section 362(e)(2) and this section— (1)Loss duplication propertyis any property— (i) That is transferred by Transferor to Acquiring in a loss duplication transaction (as defined in paragraph (g)(2) of this sec- tion); and (ii) That Acquiring would take with a basis in excess of value immediately af- ter the transaction; for this purpose, the basis Acquiring would take in the prop- erty is determined immediately after the transaction and without regard to section 362(e)(2) and this section, but otherwise taking into account all applicable provi- sions of law, including, without limitation, section 362(e)(1). (2) Aloss duplication transactionis a section 362(a) transaction in which Ac- quiring’s aggregate basis in the property received from Transferor would, but for section 362(e)(2) and this section, exceed the aggregate value of such property im- mediately after the transaction. For this purpose— (i) A transaction is a section 362(a) transaction if it is described in section 362(a) without regard to whether it is also described in any other provision of the Internal Revenue Code (Code), including, without limitation, section 362(b); and (ii) Acquiring’s aggregate basis in the property received from Transferor is de- termined immediately after the transaction and without regard tosection 362(e)(2) and this section, but otherwise taking into account all applicable provisions of law, including, without limitation, section 362(e)(1). (3)Transferor’s net built-in lossis the excess of— (i) Acquiring’s aggregate basis (de- termined under paragraph (g)(2)(ii) of this section) in all property received from Transferor in a loss duplication transac- tion, over (ii) The aggregate value of such prop- erty immediately after the transaction. (4) A property’sbuilt-in lossis the ex- cess of Acquiring’s basis in the property (determined as described in paragraph (g)(1)(ii) of this section) over the prop- erty’s value (determined immediately after the transaction). (5) A property’sallocable portion of Transferor’s net built-in lossis the portion of Transferor’s net built-in loss that bears the same ratio to Transferor’s net built-in loss that the property’s built-in loss bears to the aggregate built-in losses reflected in the bases of loss duplication property transferred by Transferor in the transac- tion. (6) AU.S. returnis a return of income under section 6012 or an information return under Subtitle F, Chapter 61, Sub- chapter A, Part III of the Code (sections 6031 and following) or the regulations thereunder, that the taxpayer is uncondi- tionally required to file. Thus, the term does not include elective forms or state- ments that are required to be filed only to obtain a particular tax treatment, includ- ingformsfiledtomakeanelectionorto reduce or avoid withholding by a person not otherwise required to file a U.S. return (as described in this paragraph (g)(6)) (for example, a notice of nonrecognition under §1.1445–2(d)). (7) Acontrolled foreign corporation (CFC) is any corporation described in sec- tion 957 or section 953(c). (8) Acontrolling U.S. shareholderis any person that is treated as a controlling U.S. shareholder under §1.964–1(c)(5) be- cause such person either owns a direct in- terest in the CFC or is treated as own- ing an interest in the CFC by reason of section 318(a)(2) (attribution from partner- ships, estates, trusts, and corporations). (9) Acontrolled foreign partnership (CFP) is any partnership treated as a con- trolled foreign partnership for purposes of section 6038. (10) Areporting U.S. partneris any partner of a CFP that is required to file an information return with respect to the CFP pursuant to section 6038 or the reg- ulations thereunder, without regard to §1.6038–3(c) or (j). In addition, in ap- plying the constructive ownership rules of §1.6038–3(b)(4), the term “nonresident alien” is replaced by the term “individual.” (11) The termstockmeans both Ac- quiring stock and Acquiring securities re- ceived by Transferor in the transaction if gain or loss on the receipt of the stock or securities is not recognized in whole or in part. (12)Value.(i)General rule.Theterm valuemeans fair market value. (ii) Special rule for transfers of part- nership interests. Notwithstanding the general rule in paragraph (g)(12)(i) of this section, when referring to a partnership interest, for purposes of section 362(e)(2) and this section, the termvaluemeans the sum of the cash that Acquiring would receive for the interest, assuming an ex- change between a willing buyer and a willing seller (neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts), increased by any §1.752–1 liabilities (as defined in §1.752–1(a)(4)) of the partner- ship allocated to Acquiring with regard to such transferred interest under sec- tion 752 immediately after the transfer to Acquiring. See §1.743–1 regarding the September 23, 20132342013–39 I.R.B. application of section 743(b) following a section 362(e) basis reduction. (h)Examples. The examples in this paragraph (h) illustrate the application of section 362(e)(2) and this section. For pur- poses of these examples, X, Y, P, S, S1, S2, and DC are domestic corporations; A and B are U.S. individuals; FC1 and FC2 are foreign corporations and, unless oth- erwise indicated, are not required to file a U.S. return and are not CFCs; and PRS is a domestic partnership. Unless the facts indicate otherwise, all persons and trans- actions are unrelated; Acquiring’s basis in the transferred property is not deter- mined under section 362(e)(1); the prop- erty transferred is not described in section 362(e)(1)(B); no election is made under section 362(e)(2)(C), and the transactions are not subject to recharacterization. Example 1.Transfer described in section 351.(i) Basic application of section.(A)Facts. A owns As- set 1 (basis $90, value $60) and Asset 2 (basis $110, value $120). In a transaction to which section 351 ap- plies, A transfers Asset 1 and Asset 2 to X in exchange for a single outstanding share of X stock represent- ing all the outstanding X stock immediately after the transaction. (B) Analysis.(1)Loss duplication transaction. A’s transfer of Asset 1 and Asset 2 is a section 362(a) transaction. But for section 362(e)(2) and this sec- tion, X’s aggregate basis in those assets would be $200 ($90 + $110), which would exceed the aggre- gate value of the assets $180 ($60 + $120) immedi- ately after the transaction. Accordingly, the transfer is a loss duplication transaction and A has a net built-in loss of $20 ($200 - $180). ( 2)Identifying loss duplication property.Butfor section 362(e)(2) and this section, X’s basis in As- set 1 would be $90, which would exceed Asset 1’s $60 value immediately after the transaction. Accord- ingly, Asset 1 is loss duplication property. But for section 362(e)(2) and this section, X’s basis in As- set 2 would be $110, which would not exceed Asset 2’s $120 value immediately after the transaction. Ac- cordingly, Asset 2 is not loss duplication property. (C) Basis in loss duplication property.X’sbasis in Asset 1 is $70, computed as its $90 basis under section 362(a) reduced by A’s $20 net built-in loss. (D) Basis in other property. Under section 362(a), X has a transferred basis of $110 in Asset 2. Under section 358(a), A has an exchanged basis of $200 in the X stock it receives in the transaction. (ii) Section 362(e)(2)(C) election. The facts are the same as in paragraph (i)(A) of this Example 1, except that A and X make an election under section 362(e)(2)(C). Under paragraph (d)(2)(i) of this sec- tion, A reduces its basis in the X stock, as determined without regard to section 362(e)(2) and this section, by the amount of A’s net built-in loss that would have beenappliedtoreduceX’sbasisinAsset1hadthe section 362(e)(2)(C) election not been made. In ad- dition, no reduction is made to X’s basis in Asset 1, as determined without regardtosection362(e)(2)and this section. As a result, A’s basis in the X stock is $180 ($200 - $20), X’s basis in Asset 1 is $90, and X’s basis in Asset 2 is $110. Example 2.Transfer described in both section 351 and section 368(a)(1)(B) .(i)Basic application of section .(A)Facts. P owns the sole outstanding share of S1 stock and the ten outstanding shares of S2 stock. In a transaction to which section 351 ap- plies and that is described in section 368(a)(1)(B), P transfers its ten S2 shares to S1 in exchange for an additional ten shares of S1 voting stock. At the time of the transfer, P has a basis of $10 each in five of its S2 shares (Shares 1 - 5) and a basis of $5 each in its other five S2 shares (Shares 6 - 10), and the value of each share is $7. (B) Analysis.(1)Loss duplication transaction. P’s transfer of the S2 shares is a section 362(a) trans- action notwithstanding that it is also a transaction de- scribed in section 368(a)(1)(B) and therefore section 362(b). But for section 362(e)(2) and this section, S1’s aggregate basis in the S2 shares would be $75 ($10x5,or$50,forShares1–5+$5x5,or$25, for Shares 6–10). Thus, S1’s $75 aggregate basis in the shares would exceed the aggregate value of the shares, $70 ($7 x 10 shares), immediately after the transaction. Accordingly, the transfer is a loss dupli- cation transaction and P has a net built-in loss of $5 ($75 - $70). ( 2)Identifying loss duplication property. But for section 362(e)(2) and this section, S1’s basis in each of Shares 1–5 would be $10, which would exceed each share’s $7 value immediately after the transac- tion. Accordingly, Shares 1–5 are each loss duplica- tion property. But for section 362(e)(2) and this sec- tion, S1’s basis in each of Shares 6–10 would be $5, which would not exceed each share’s $7 value im- mediately after the transaction. Accordingly, Shares 6–10 are not loss duplication property. (C) Basis in loss duplication property.S1’sbasis in each of Shares 1 - 5 is $9, computed as its $10 basis (determined without regard to section 362(e)(2) and this section) reduced by $1, the share’s allocable portion (1/5) of P’s net built-in loss ($5). (D) Basis in other property. Under section 362(a), S1 has a transferred basis of $5 in each of Shares 6 - 10. Under section 358(a), P has an exchanged basis in the ten S1 shares it receives in the exchange ($10 in each of the five S1 shares received in exchange for Shares 1–5 and $5 in each of the five S1 shares received in exchange for Shares 5 - 10). (ii) Section 362(e)(2)(C) election. The facts are the same as in paragraph (i)(A) of this Example 2, except that an election undersection 362(e)(2)(C) is made to reduce P’s basis in the shares of S1 stock received in the exchange. Under paragraph (d)(2)(i) of this section, P reduces its basis in the S1 stock by $5, the amount of P’s net built-in loss that S1’s basis in the S2 shares would have been reduced under section 362(e)(2) and this section had the section 362(e)(2)(C) election not been made, and no reduction is made to S1’s basis in the S2 stock (as determined without regardtosection362(e)(2) and this section). Because an election is being made under section 362(e)(2)(C), P’s basis in the new S1 shares is not determined under the general rule of §1.358–2(a)(2)(i) (under which P’s basis in each new S1 share would be equal to the basis of the S2 share transferred in exchange for the S1 share). Section 1.358–2(a)(2)(viii)(B). Accordingly, P’s basis in each new S1 share will be $7, the share’s allocable portion of P’s $75 aggregate basis in the S2 shares transferred in the transaction (or, $7.50 per share), reduced under paragraph (d)(2)(i) of this section by the$5thatwouldhavebeenappliedtoreduceS1’s basis in the S2 shares had the section 362(e)(2)(C) election not been made (or $.50 per share). Un- der paragraph (d)(2)(ii) of this section and section 362(a), S1 receives five shares of the S2 stock with a basis of $10 each and five shares of the S2 stock with a basis of $5 each. Example 3.Transfer described in both section 351 and section 368(a)(1)(A), multiple transferors, elimination of duplicated loss .(i)Facts.AownsAs- set 1 (basis $120, value $130) and all the outstand- ing shares of X stock. B owns all the outstanding shares of Y stock (basis$150). Y owns Asset 2 (ba- sis $250, value $210). Pursuant to a single plan, A transfers Asset 1 to X in exchange for additional X shares and, in a transaction qualifying as a reorgani- zation described in section 368(a)(1)(A), Y merges with and into X. In the merger, B receives X stock with a basis equal to B’s basis in its Y stock immedi- ately before the merger. A’s transfer of Asset 1 to X in exchange for X stock and Y’s transfer of Asset 2 to X in the merger are both transactions to which sec- tion 351 applies. Notwithstanding that the transfers by A and Y are pursuant to a single plan forming one transaction, section 362(e)(2) and this section apply to each transferor separately. (ii) Application of section to A’s transfer of Asset 1 . A’s transfer of Asset 1 is a section 362(a) transac- tion. But for section 362(e)(2) and this section, X’s basis in Asset 1 would be $120, which would not ex- ceed Asset 1’s $130 value immediately after the trans- action. Accordingly, A’s transfer of Asset 1 is not a loss duplication transaction notwithstanding that, tak- ing both A’s transfer and Y’s transfer into account, X has an aggregate net loss in Asset 1 and Asset 2. Because Asset 1 is not received in a loss duplication transaction, it is not loss duplication property and sec- tion362(e)(2)andthissectiondonotapplytoA’s transfer of Asset 1. (iii) Application of section to Y’s transfer of As- set 2 .(A)Analysis.(1)Loss duplication transaction. Y’stransferofAsset2toXisasection362(a)trans- action, notwithstanding that it is also a transaction de- scribed in section 368(a)(1)(A) and therefore section 362(b). But for section 362(e)(2) and this section, X’s basis in Asset 2 would be $250, which would exceed Asset 2’s $210 value immediately after the transac- tion. Accordingly, Y’s transfer is a loss duplication transaction and Y has a net built-in loss of $40. ( 2)Identifying loss duplication property. But for section 362(e)(2) and this section, X’s basis in Asset 2 would be $250, which would exceed Asset 2’s $210 value immediately after the transaction. Accordingly, Asset 2 is loss duplication property. (B) Basis in loss duplication property. Although Asset 2 is loss duplication property, section 362(e)(2) does not apply to Y’s transfer of Asset 2 to X because Y distributes all of the X stock received in the ex- change without recognizing gain or loss, and, upon completion of the transaction, no person will hold the X stock or any other asset with a basis determined in whole or in part by reference to Y’s basis in such stock. Accordingly, under paragraph (c)(1) of this section, X’s basis in Asset 2 is not determined under section 362(e)(2) and this section. Thus, under sec- tion 362(a), X’s basis in Asset 2 is $250. 2013–39 I.R.B.235September 23, 2013 (iv)Basis in other property. Under section 358, A’s basis in the X stock received in exchange for As- set 1 is $120 and B’s basis in the X stock received in the merger is $150. Under section 362(a), X’s basis in Asset 1 is $120. Example 4.Transfer described in both section 351 and section 368(a)(1)(D), followed by a distri- bution qualifying under section 355 .(i)Basic trans- action .(A)Facts. A and B each own one of the two outstanding shares of X common stock. X’s assets include Asset 1 (basis $120, value $70), Asset 2 (ba- sis $160, value $110), and Asset 3 (basis $220, value $240). In a transaction to which section 351 applies and that is described in section 368(a)(1)(D), X trans- fers Asset 1, Asset 2, and Asset 3 to Y in exchange for all the Y stock; then, in a distribution that quali- fies under section 355, X distributes all the Y stock received in the exchange to A in exchange for all of A’s X stock. Under section 361(c)(1), X does not rec- ognize gain or loss as a result of the distribution of all the Y stock. (B) Analysis.(1)Loss duplication transaction. X’s transfer of Asset 1, Asset 2, and Asset 3 is a sec- tion 362(a) transaction. But for section 362(e)(2) and this section, Y’s aggregate basis in those assets would be $500 ($120 + $160 + $220). The aggregate value of the assets immediately after the transaction is $420 ($70 + $110 + $240). Thus, Y’s aggregate basis in the assets would exceed the aggregate value of the assets immediately after the transaction. Accordingly, the transfer is a loss duplication transaction and X has a net built-in loss of $80 ($500 - $420). ( 2)Identifying loss duplication property.Butfor section 362(e)(2) and this section, Y’s basis in Asset 1 would be $120, which would exceed Asset 1’s $70 value immediately after the transaction. Accordingly, Asset 1 is loss duplication property. But for section 362(e)(2) and this section, Y’s basis in Asset 2 would be $160, which would exceed Asset 2’s $110 value immediately after the transaction. Accordingly, As- set 2 is also loss duplication property. But for sec- tion 362(e)(2) and this section, Y’s basis in Asset 3 would be $220 and would therefore not exceed Asset 3’s $240 value immediately after the transaction. Ac- cordingly, Asset 3 is not loss duplication property. (C) Basis in loss duplication property. Although Asset 1 and Asset 2 are each loss duplication property, X will distribute the Y stock received in exchange for Asset 1 and Asset 2 without recognition of gain or loss, and, upon completion of the transaction, no person will hold the Y stock received by X or any other asset with a basis determined in whole or in part by reference to X’s basis in the Y stock received in the exchange. (A’s basis in the Y stock will be determined by reference to his basis in his X stock.) Accordingly, under paragraph (c)(1) of this section, Y’s bases in Asset 1 and Asset 2 are determined under section 362(a) and not under section 362(e)(2) and this section. Thus, Y’s basis in Asset 1 is $120 and Y’s basis in Asset 2 is $160. (D) Basis in other property. Under section 358, A’sbasisintheYstockreceivedinexchangeforhis X stock is determined by reference to his basis in his X stock surrendered. Under section 362(a), Y’s basis in Asset 3 is $220. (ii) Section 355(e).(A)Facts.Thefactsarethe same as in paragraph (i)(A) of this Example 4,except that, after the section 355 distribution, Y is acquired pursuant to a plan (within the meaning of §1.355–7), resulting in the application of section 355(e) to the transactions. (B) Analysis. Because section 361(c)(2), and not section 361(c)(1), will apply to X’s distribution of Y stock, X will not qualify for nonrecognition treat- ment on the distribution of the Y stock. As a result, paragraph (c)(1) of this section does not apply to the transaction, and Y’s bases in Asset 1 and Asset 2, the loss duplication property, are determined under sec- tion 362(e)(2) and this section. Asset 1 has a built-in loss of $50 ($120 - $70), and Asset 2 has a built-in loss of $50 ($160 - $110). Thus, Asset 1’s alloca- ble portion of X’s net built-in loss is $40 ($50/$100 x $80), and Asset 2’s allocable portion of X’s net built-in loss is $40 ($50/$100 x $80). Accordingly, Y receives Asset 1 with a basis of $80 ($120 - $40) and Asset 2 with a basis of $120 ($160 - $40). (iii) Retained stock and securities.(A)Facts.The facts are the same as in paragraph (i)(A) of this Ex- ample 4 , except that X transfers Asset 1, Asset 2, and Asset 3 to Y in exchange for Y stock and Y securities, each constituting half of the consideration. In addi- tion, for a valid business purpose, X retains Y stock and Y securities each worth 1 percent of the total con- sideration. (B) Analysis. Paragraph (c)(1) of this section ap- plies only to the extent that stock received in a trans- action is distributed without recognition of gain or loss. Thus, section 362(e)(2) and this section apply to the extent that property was exchanged for the re- tained Y stock and Y securities (2 percent of the to- tal). Accordingly, Y reduces its basis in Asset 1 and in Asset 2, the loss duplication property, by $1.60 (two percent of X’s $80 net built-in loss). Asset 1 has a built-in loss of $50 ($120 - $70), and Asset 2 has a built-in loss of $50 ($160 - $110). Thus, Asset 1’s allocable portion of X’s net built-in loss is $.80 ($50/$100 x $1.60), and Asset 2’s allocable portion of X’s net built-in loss is $.80 ($50/$100 x $1.60). As a result, Y receives Asset 1 with a basis of $119.20 ($120 - $.80) and Asset 2 with a basis of $159.20 ($160 - $.80). (iv) Retained stock and securities with a section 362(e)(2)(C) election .(A)Facts. The facts are the same as in paragraph (iii)(A) of this Example 4,ex- cept that an election undersection 362(e)(2)(C) is made to reduce X’s bases in its retained Y stock and retained Y securities. (B) Analysis. Under paragraph (d)(2)(i) of this section, X reduces its basis in the retained Y stock and the retained Y securities (determined without regard to section 362(e)(2) and this section) by $1.60, the portion of X’s $80 net built-in loss that would have been applied to reduce Y’s basis in the transferred assets had the election to apply section 362(e)(2)(C) not been made. (Because the value of the Y stock and the value of the Y securities are equal, X’s $500 basis in the transferred property would be allocated equally between the Y stock and the Y securities, $250 to each, under §1.358–2(b)(2), and the retained Y stock and Y securities have a basis of $2.50 each (one percent of $250).) For the reasons set forth in paragraph (iii)(B) of this Example 4,Ywouldhave been required to reduce its basis in the transferred as- sets by $1.60. Accordingly, X must reduce its ag- gregate basis in the retained Y stock and Y securities by $1.60. Under paragraph (d)(2)(i) of this section, the $1.60 basis reduction is allocated and applied to reduce X’s bases in the retained Y stock and Y secu- rities in proportion to the value of each. Because X retained Y stock and Y securities with equal values, X holds each of the retained Y stock and securities with an adjusted basis of $1.70 ($2.50 - $.80). Under paragraph (d)(2)(ii) of this section, Y receives Asset 1 with a basis of $120, Asset 2 with a basis of $160, and Asset 3 with a basis of $220. Example 5.Transfer of liabilities.(i)Liabilities described in section 358(d)(1) .(A)Basic applica- tion of section, no section 362(e)(2)(C) election .(1) Facts. A owns Asset 1 (basis $800, value $700). A also has a $200 liability that has been taken into ac- count for tax purposes and is thus described in section 358(d)(1), and not in sections 357(c)(3), 358(d)(2), and 358(h)(1). A transfers Asset 1 to X in exchange for a single outstanding share of X stock represent- ing all the outstanding X stock immediately after the transaction and X’s assumption of the liability. The transfer is a transaction to which section 351 applies. ( 2)Analysis.(i)Loss duplication transaction.A’s transfer of Asset 1 is a section 362(a) transaction. But for section 362(e)(2) and this section, X’s basis in Asset 1 would be $800, which would exceed Asset 1’s $700 value immediately after the transaction. Ac- cordingly, the transfer is a loss duplication transaction and A has a net built-in loss of $100 ($800 - $700). ( ii)Identifying loss duplication property. But for section 362(e)(2) and this section, X’s basis in Asset 1 would be $800, which would exceed the $700 value of Asset 1 immediately after the transaction. Accord- ingly, Asset 1 is loss duplication property. ( 3)Basis in loss duplication property.X’sbasis in Asset 1 is $700, computed as its $800 basis deter- mined under section 362(a) reduced by A’s $100 net built-in loss. ( 4)Basis in other property. Under sections 358(a) and (d)(1), A’s basis in the X stock is $600 ($800 basis in property transferred - $200 liability assumed). (B) Section 362(e)(2)(C) election. The facts are the same as in paragraph (i)(A)( 1)ofthisExample 5, except that A and X make an election under section 362(e)(2)(C). In this case, A’s $100 net built-in loss that would have been applied to reduce X’s basis in Asset 1 is applied to reduce A’s basis in the X stock received. As a result, A’s basis in the X stock is $500 ($600, as determined in paragraph (i)(A)( 4)ofthis Example 5, reduced by $100) and X’s basis in Asset 1 is $800. (ii) Contingent liabilities described in section 358(h)(1), section 358(h)(2)(A) exception applies . (A) Facts. The facts are the same as in paragraph (i)(A)( 1)ofthisExample 5, except that A’s liability (valued at $200) has not been taken into account for tax purposes and is described in sections 358(d)(2) and 358(h)(1). However, Asset 1 is a trade or busi- ness and the liability is associated with the trade or business; as a result, the liability is described in sec- tion 358(h)(2)(A) and is excepted from the general rule of section 358(h)(1). (B) Analysis. For the reasons set forth in para- graph (i)(A)( 2)ofthisExample 5, A’s transfer of As- set 1 is a loss duplication transaction, A has a net built-in loss of $100, and Asset 1 is loss duplication property. (C) Basis in loss duplication property.Forthe reasons set forth in paragraph (i)(A)( 3)ofthisExam- ple 5 ,X’sbasisinAsset1is$700. September 23, 20132362013–39 I.R.B. (D)Basis in other property.A’sbasisintheX stock is $800 under sections 358(a), 358(d)(2), and 358(h)(2)(A). (E) Section 362(e)(2)(C) election. The facts are the same as in paragraph (ii)(A) of this Example 5, except that A and X make an election under section 362(e)(2)(C). In this case, A’s $100 net built-in loss that would have applied to reduce X’s basis in Asset 1 is applied to reduce A’s basis in the X stock received. As a result, A’s basis in the X stock is $700 ($800, as determined in paragraph (ii)(D) of this Example 5, reduced by $100). X’s basis in Asset 1 is $800. Example 6.Section 351 transfer with boot.(i) Basic transaction.(A)Facts. A owns Asset 1 (ba- sis $80, value $100) and Asset 2 (basis $30, value $25). In a transaction to which section 351 applies, A transfers Asset 1 and Asset 2 to X in exchange for 10 shares of X stock and $25. (B) Analysis.(1)Loss duplication transaction. A’s transfer of Asset 1 and Asset 2 is a section 362(a) transaction. But for section 362(e)(2) and this sec- tion, X’s aggregate basis in those assets would be $130, computed as follows. Under section 362(a), a corporation’s basis in property acquired in a trans- action to which section 351 applies is the same as the property’s basis in the hands of the transferor, increased by any gain recognized to the transferor on such transfer. Under section 351(b), gain (but not loss) is recognized to the extent a transferor in a section 351 exchange receives other property or money in addition to the stock permitted to be re- ceived without the recognition of gain. To determine the amount of gain recognized under section 351(b), the consideration is allocated proportionately (by value) among the transferred properties. A’s gain on the transfer is therefore computed as follows: Asset 1 reflects 80 percent of the value transferred ($100/$125) and Asset 2 reflects 20 percent of the value transferred ($25/$125). Thus, 80 percent of the stock (eight shares) and the cash ($20) are treated as being received in exchange for Asset 1 and 20 percentofthestock(twoshares)andthecash($5) are treated as being received in exchange for Asset 2. Thus, under section 351(b), A recognizes $20 of gain for the cash received in exchange for Asset 1, but A recognizes no loss for the amount received for Asset 2. As a result, under section 362(a), X would have a basis of $100 in Asset 1 and $30 in Asset 2. Thus, X’s aggregate basis in the assets would be $130, which exceeds the $125 aggregate value of the assets ($100 + $25)). The transfer is a loss duplication transaction and A has a net built-in loss of $5 ($130 - $125). ( 2)Identifying loss duplication property.Butfor section 362(e)(2) and this section, X’s basis in As- set 1 would be $100 (A’s $80 basis increased by A’s $20 gain recognized), which would not exceed As- set 1’s $100 value immediately after the transaction. Accordingly, Asset 1 is not loss duplication property. But for section 362(e)(2) and this section, X’s basis in Asset 2 would be $30, which would exceed Asset 2’s $25 value immediately after the transaction. Ac- cordingly, Asset 2 is loss duplication property. (C) Basis in loss duplication property.X’sbasis in Asset 2 is $25, computed as its $30 basis under section 362(a) reduced by A’s $5 net built-in loss. (D) Basis in other property. Under section 362(a), X’s basis in Asset 1 is $100 (A’s $80 basis increased by the $20 gain recognized). Under section 358, A’s basis in the X stock is $105 (the sum of its $80 basis in Asset 1, its $30 basis in Asset 2, and its $20 gain recognized, reduced by the $25 cash received in the exchange). (ii) Section 362(e)(2)(C) election. The facts are the same as in paragraph (i)(A) of this Example 6, except that A and X elect to reduce A’s stock basis under section 362(e)(2)(C). Under paragraph (d)(2)(i) of this section, A reduces its $105 basis in the X stock by $5, the amount of A’s net built-in loss of that would have been applied to reduce X’s basis in Asset 2 had the section 362(e)(2)(C) election not been made. As a result, A’s basis in the X stock is $100, and X’s basis in Asset 2 is $30. Example 7.Section 304 sale of built-in loss stock. (i) Basic transaction.(A)Facts. A owns all the stock of X (basis $90, value $60) and all the stock of Y. A sells all his X stock to Y for $60. Under section 304, A is treated as though he transferred the X stock to Y in exchange for Y stock in a transaction to which section 351 applies. Then, Y is treated as redeeming the Y stock it was treated as having issued to A in the deemed section 351 transaction. (B) Analysis.(1)Loss duplication transaction. A’s deemed transfer of X stock to Y is a section 362(a) transaction. But for section 362(e)(2) and this sec- tion, Y’s aggregate basis in the X stock would be $90, whichwouldexceedtheXstock’svalueof$60imme- diately after the transaction. Accordingly, the trans- fer is a loss duplication transaction and A has a net built-in loss of $30. ( 2)Identifying loss duplication property. But for section 362(e)(2) and this section, Y’s basis in the X stock would be $90, which would exceed the X stock’s $60 value immediately after the transaction. Accordingly, the X stock is loss duplication property. (C) Basis in loss duplication property.Y’sbasis in the X stock is $60, its $90 basis determined without regard to section 362(e)(2) and this section, reduced by A’s $30 net built-in loss. (D) Basis in other property. Under section 358(a), A has an exchanged basis of $90 in the Y stock he is deemed to receive in the exchange; the effect of the deemed redemption of that stock is then determined under section 302. (ii) Section 362(e)(2)(C) election. The facts are the same as in paragraph (i)(A) of this Example 7,ex- cept that the parties elect to reduce A’s stock basis un- der section 362(e)(2)(C). For the reasons set forth in paragraphs (i)(B) and (C) of this Example 7,Y’sbasis in the X stock would be reduced by $30. Accordingly, A’s basis in the deemed-issued Y stock is $60, his $90 basis otherwise determined under section 358(a) re- duced by the $30 that would have been applied to re- duce Y’s basis in the X stock under section 362(e)(2) and this section; the effect of the deemed redemption of that stock is then determined under section 302. Y’s basis in the X stock is $90. Example 8.Transactions involving partnerships. (i) Transfer by a partnership.(A)Basic application of section .(1)Facts. PRS owns Asset 1 (basis $100, value $70). PRS contributes Asset 1 to X in a trans- action to which section 351 applies. ( 2)Analysis.(i)Loss duplication transaction. PRS’stransferofAsset1isasection362(a)trans- action. But for section 362(e)(2) and this section, X’s basis in Asset 1 would be $100, which would exceed Asset 1’s $70 value immediately after the transaction. Accordingly, the transfer is a loss duplication trans- action and PRS has a net built-in loss of $30 ($100 - $70). ( ii)Identifying loss duplication property. But for section 362(e)(2) and this section, X’s basis in Asset 1 would be $100, which would exceed Asset 1’s $70 value immediately after the transaction. Accordingly, Asset 1 is loss duplication property. ( 3)Basis in loss duplication property.X’sbasis in Asset 1 is $70, computed as its $100 basis under section 362(a) reduced by PRS’s $30 net built-in loss. ( 4)Basis in other property. Under section 358(a), PRS has an exchanged basis of $100 in the X stock it receives in the exchange. (B) Section 362(e)(2)(C) election.Thefactsare the same as in paragraph (i)(A)( 1)ofthisExample 8, except that PRS and X elect to reduce PRS’s stock basis under section 362(e)(2)(C). In this case, PRS’s $30 net built-in loss (as determined in paragraph (i)(A)( 2)(i)ofthisExample 8) that would have been applied to reduce X’s basis in Asset 1 is applied to reduce PRS’s basis in the X stock received. As a result, PRS’s basis in the X stock is $70 ($100 - $30) and X’s basis in Asset 1 is $100. The $30 reduction to PRS’s basis in the X stock is treated as an expenditure of PRS under section 705(a)(2)(B) and paragraph (e)(1) of this section. As a result, the partners of PRS must reduce their bases in their PRS interests. (ii) Transfer of interest in partnership with lia- bility .(A)Basic application of section.(1)Facts. A and two other individuals are equal partners in PRS. A’s basis in its partnership interest is $247. A’s share of PRS’s §1.752–1 liabilities (as defined in §1.752–1(a)(4)) is $145. A transfers his partnership interest to X in a transaction to which section 351 applies. PRS has no election in effect under section 754. If X were to sell the PRS interest immediately after the transfer, X would receive $100 in cash or other property. In addition, assume that, taking into account the rules under §1.752–4, X’s share of PRS’s §1.752–1 liabilities (as defined in §1.752–1(a)(4)) is $150 immediately after the transfer. ( 2)Analysis.(i)Loss duplication transaction.A’s transfer of its PRS interest is a section 362(a) trans- action. But for section 362(e)(2) and this section, X’s basis in the PRS interest, would be $252 (A’s basis of $247, reduced by A’s $145 share of PRS liabilities, increased by X’s $150 share of PRS liabilities) and, under paragraph (g)(12)(ii) of this section, the value of the PRS interest would be $250 (the sum of $100, the cash X would receive if X immediately sold the interest, and $150, X’s share of the §1.752–1 liabili- ties (as defined in §1.752–1(a)(4)) under section 752 immediately after the transfer to X). Therefore, the transfer is a loss duplication transaction and A has a net built-in loss of $2 ($252 - $250). ( ii)Identifying loss duplication property. But for section 362(e)(2) and this section, X’s basis in the PRS interest would be $252, which would exceed the PRS interest’s $250 value immediately after the trans- action. Accordingly, the PRS interest is loss duplica- tion property. ( 3)Basis in loss duplication property.X’sbasisin the PRS interest is $250, computed as its $252 basis under section 362(a), taking into account the rules under section 752, reduced by A’s $2 net built-in loss. ( 4)Basis in other property. Under section 358, taking into account the rules under section 752, A has a basis of $102 ($247 reduced by A’s $145 share 2013–39 I.R.B.237September 23, 2013 of PRS liabilities) in the X stock he receives in the transaction. (B) Section 362(e)(2)(C) election. The facts are the same as in paragraph (i)(A) of this Example 8, except that A and X make an election under section 362(e)(2)(C). Under paragraph (d)(2)(i) of this sec- tion, A reduces his basis in the X stock, as determined without regard to section 362(e)(2) and this section, by the amount of A’s net built-in loss that would have been applied to reduce X’s basis in the PRS interest had the section 362(e)(2)(C) election not been made. In addition, no reduction is made to X’s basis in the PRS interest, as determined without regard to section 362(e)(2) and this section. As a result, A’s basis in the X stock is $100 ($102 - $2) and X’s basis in the PRS interest is $252. (C) Transfer of partnership interest with liabil- ity, not loss duplication transaction . The facts are the same as in paragraph (ii)(A)(1) of this Example 8 , except that A’s share of PRS’s §1.752–1 liabilities (as defined in §1.752–1(a)(4)) is $155. But for sec- tion 362(e)(2) and this section, X’s basis in the PRS interest would be $242 (A’s basis of $247, reduced by A’s $155 share of PRS liabilities, increased by X’s $150 share of PRS liabilities), which would not ex- ceed the PRS interest’s $250 value immediately after the transaction. Accordingly, A’s transfer of the PRS interest is not a loss duplication transaction and sec- tion 362(e)(2) and this section have no application to the transaction. Under section 362(a), X’s basis in the PRS interest is $242 and, under section 358, tak- ing into account the rules under section 752, A has a basis of $92 ($247 reduced by A’s $155 share of PRS liabilities) in the X stock he receives in the transac- tion. Example 9.Transactions involving S Corpora- tions .(i)Transfer by S Corporation.(A)No section 362(e)(2)(C) election .(1)Facts. S, an S corpora- tion as defined in section 1361(a)(1), owns Asset 1 (basis $100, value $70). S transfers Asset 1 to X in exchange for a single outstanding share of X stock representing all the outstanding X stock immediately after the transaction. S does not elect to treat X as a qualified subchapter S subsidiary. The transaction is one to which section 351 applies. ( 2)Analysis.(i)Loss duplication transaction.S’s transfer of Asset 1 is a section 362(a) transaction. But for section 362(e)(2) and this section, X’s basis in As- set 1 would be $100, which would exceed Asset 1’s $70 value immediately after the transaction. Accord- ingly, the transfer is a loss duplication transaction and S has a net built-in loss of $30 ($100 - $70). ( ii)Identifying loss duplication property. But for section 362(e)(2) and this section, X’s basis in Asset 1 would be $100, which would exceed Asset 1’s $70 value immediately after the transaction. Accordingly, Asset 1 is loss duplication property. ( iii)Basis in loss duplication property.X’sbasis in Asset 1 is $70, computed as its $100 basis under section 362(a) reduced by S’s $30 net built-in loss. ( iv)Basis in other property. Under section 358(a), S has an exchanged basis of $100 in the X stock it receives in the exchange. (B) Section 362(e)(2)(C) election. The facts are the same as in paragraph (i)(A)( 1)ofthisExample 9, except that S and X elect to reduce S’s stock basis under section 362(e)(2). In this case, S’s $30 built-in loss (as determined in paragraph (i)(A)( 2)(i)ofthis Example 9) that would have been applied to reduce X’s basis in Asset 1 is applied to reduce S’s basis in the X stock received. As a result, S’s basis in the X stock is $70 ($100 - $30) and X’s basis in As- set 1 is $100. The $30 reduction to S’s basis in the X stock is treated as an expense of S under section 1367(a)(2)(D) and paragraph (e)(2) of this section. As a result, the shareholders of S must reduce their bases in their S stock. (ii) Transfer to S Corporation.(A)Basic applica- tion of section .(1)Facts. A owns Asset 1 (basis $90, value $60) and Asset 2 (basis $110, value $120). In a transaction to which section 351 applies, A transfers Asset1andAsset2toS,anScorporationasdefined in section 1361(a)(1), in exchange for a single share of S stock representing all the outstanding S stock im- mediately after the transaction. ( 2)Analysis.(i)Loss duplication transaction.A’s transfer of Asset 1 and Asset 2 is a section 362(a) transaction. But for section 362(e)(2) and this sec- tion, S’s aggregate basis in those assets would be $200 ($90 + $110), which would exceed the aggre- gate value of the assets $180 ($60 + $120) immedi- ately after the transaction. Accordingly, the transfer is a loss duplication transaction and A has a net built-in loss of $20 ($200 - $180). ( ii)Identifying loss duplication property. But for section 362(e)(2) and this section, S’s basis in As- set 1 would be $90, which would exceed Asset 1’s $60 value immediately after the transaction. As a re- sult, Asset 1 is loss duplication property. But for sec- tion 362(e)(2) and this section, S’s basis in Asset 2 would be $110, which would not exceed Asset 2’s $120 value immediately after the transaction. As a result, Asset 2 is not loss duplication property. ( 3)Basis in loss duplication property.S’sbasisin Asset 1 is $70, computed as its $90 basis under sec- tion 362(a) reduced by S’s $20 net built-in loss. The $20 reduction to S’s basis in Asset 1 does not require a reduction to A’s basis in its S stock under section 1367(a)(2)(D). See paragraph (f) of this section. ( 4)Basis in other property. Under section 362(a), S has a transferred basis of $110 in Asset 2. Under section 358(a), A has a basis of $200 in the S stock it receives in the exchange. (B) Section 362(e)(2)(C) election.(1)Applica- tion of section to transaction . The facts are the same as in paragraph (ii)(A)( 1)ofthisExample 9, except that A and S elect to reduce A’s stock basis under sec- tion 362(e)(2)(C). In this case, A’s $20 built-in loss (as determined in paragraph (ii)(A)( 2)ofthisExam- ple 9 ) that would have been applied to reduce S’s ba- sis in Asset 1 is applied to reduce A’s basis in the S stock received. As a result, A’s basis in the S stock is $180 ($200 - $20), S’s basis in Asset 1 is $90, and S’s basisinAsset2is$110. ( 2)Tax consequences of subsequent disposition of transferred assets . The facts are the same as in paragraph (ii)(B)( 1)ofthisExample 9except that, in addition, the year after the transaction, S sells As- set 1 (basis $90, value $60) and Asset 2 (basis $110, value $120) for $180, recognizing the $20 net built-in loss. The loss is allocated to A and reduces A’s ba- sis in the S stock from $180 to $160 under section 1367(a)(2)(B). If A then sells its S stock for its $180 value, A will recognize a gain of $20. Example 10.Triangular reorganizations.(i) Facts. P owns all the stock of S1 and X owns all the stock of S2. In a merger described in section 368(a)(2)(D), S2 merges with and into S1, and X receives stock of P in exchange for its S2 stock. S2 has a net built-in loss in its assets acquired by S1 in the transaction. (ii) Analysis. The reorganization is not a sec- tion 362(a) transaction, notwithstanding that, under §1.358–6(c), P is treated as acquiring and then trans- ferring S2’s assets to S1 for purposes of determining P’s adjustment to its basis in its S1 stock. Accord- ingly, S1’s basis in the property acquired in the trans- action is not determined under section 362(e)(2) and this section; it is determined under section 362(b). Example 11.Transfer that includes property de- scribed in section 362(e)(1)(B) and property not de- scribed in section 362(e)(1)(B) .(i)Facts.FC1trans- fers Asset 1 (basis $80, value $50) and Asset 2 (basis $120, value $110) to DC in a transaction to which sec- tion 351 applies. Asset 1 is not property described in section 362(e)(1)(B); Asset 2 is property described in section 362(e)(1)(B). (ii) Basis in property described in section 362(e)(1)(B) . Immediately after the transfer and with- out regard to section 362(e)(1) or section 362(e)(2) and this section, DC’s aggregate basis in property described in section 362(e)(1)(B) (Asset 2) would be $120 under section 362(a). However, the aggregate value of such property immediately after the transfer is $110. Accordingly, the transfer of Asset 2 is an importation of net built-in loss within the meaning of section 362(e)(1)(C) and, under section 362(e)(1), X’s basis in Asset 2 would be Asset 2’s value, $110. (iii) Application of section.(A)Analysis.(1)Loss duplication transaction . FC1’s transfer of Asset 1 and Asset 2 is a section 362(a) transaction. But for section 362(e)(2) and this section, DC’s aggregate ba- sis in those assets would be $190 (Asset 1’s $80 ba- sis under section 362(a) + Asset 2’s $110 basis under section 362(e)(1)), which would exceed the aggregate value of the assets $160 ($50 + $110) immediately af- ter the transaction. Accordingly, the transfer is a loss duplication transaction and FC1 has a net built-in loss of $30 ($190 - $160). ( 2)Identifying loss duplication property. But for section 362(e)(2) and this section, DC’s basis in As- set 1 would be $80, which would exceed Asset 1’s $50 value immediately after the transaction. Accord- ingly, Asset 1 is loss duplication property. But for section 362(e)(2) and this section, DC’s basis in As- set 2 would be $110, which would not exceed Asset 2’s $110 value immediately after the transaction. Ac- cordingly, Asset 2 is not loss duplication property. (B) Basis in loss duplication property.DC’sbasis in Asset 1 is $50, computed as its $80 basis under section 362(a) reduced by FC1’s $30 net built-in loss. (C) Basis in other property. Under section 362(e)(1), DC’s basis in Asset 2 is $110. Under section 358(a), FC1 has anexchanged basis of $200 in the DC stock it receives in the transaction. Example 12.Section 362(e)(2)(C) elections with respect to transfers between persons that are not re- quired to file a U.S. return and that are not CFCs or CFPs .(i)Basic application of section. On June 30, Year 1, FC1 transfers Asset 1 to FC2 in a transac- tion to which section 351 applies (the original trans- fer) and that is therefore a section 362(a) transac- tion. But for section 362(e)(2) and this section, FC2’s basis in Asset 1 (determined immediately after the transfer, taking into account all applicable law, in- cluding section 362(e)(1)) exceeds the value of As- set 1 immediately after the transaction. Accordingly, September 23, 20132382013–39 I.R.B. the transaction is a loss duplication transaction and Asset 1 is loss duplication property. FC1 and FC2 executed a written, binding agreement to apply sec- tion 362(e)(2)(C) at some point before any Section 362(e)(2)(C) Statement is filed. However, the trans- fer was not entered into with a view to reducing or avoiding the Federal income tax liability of any per- son by avoiding the application of section 362(e)(2) and this section; further, no event described in para- graph (d)(3)(ii)(E), (F), or (G) of this section occurs prior to June 30, Year 3. As a result, under paragraph (c)(2) of this section, section 362(e)(2) and this sec- tion do not apply to the transfer. Accordingly, FC2’s basis in Asset 1 is determined under section 362(a), no section 362(e)(2)(C) election can be made, and any protective filing of a Section 362(e)(2)(C) Statement will have no effect. (ii) Loss duplication property later acquired by a person required to file U.S. return .Thefactsarethe same as in paragraph (i) of this Example 12,except that, in addition, on January 1, Year 2, FC2 trans- fers Asset 1 to DC in an exchange to which section 351 applies. FC2’s transfer is an event described in paragraph (d)(3)(ii)(G) of this section. As a result, paragraph (c)(2) does not except the original trans- fer from the application of section 362(e)(2) and this section. Under paragraph (d)(3)(ii)(G) of this section, DC must include the Section 362(e)(2)(C) Statement for the original transfer on or with its Year 2 U.S. re- turn in order for that election to be effective. The re- sult would be the same if, instead of FC2 transferring Asset 1 to DC, FC1 transferred its FC2 stock to DC in an exchange to which section 351 applies. (Further, if an asset transferred by FC1 or FC2 to DC is a loss asset immediately after its transfer to DC, DC’s basis in that asset may be subject to section 362(e)(1).) (iii) Party to exchange later becomes a person re- quired to file U.S. return . The facts are the same as in paragraph (i) of this Example 12,exceptthat, in addition, on January 1, Year 2, FC2 becomes en- gaged in a U.S. business. FC2’s becoming engaged in a U.S. business is an event described in paragraph (d)(3)(ii)(F) of this section because it will cause FC2 to become a person required to file a U.S. return. As a result, paragraph (c)(2) of this section does not except the transfer from the application of section 362(e)(2) and this section. Under paragraph (d)(3)(ii)(F) of this section, FC2 must include the Section 362(e)(2)(C) Statement for the original transfer on or with its Year 2 U.S. return in order for the section 362(e)(2)(C) election for the original transfer to be effective. (iv) Statement not filed with respect to designated event . The facts are the same as in paragraph (iii) of this Example 12, except that, in addition, FC1 be- came engaged in a U.S. trade or business on Octo- ber 31, Year 1 and as a result became a person re- quired to file a U.S. return, an event described in para- graph (d)(3)(ii)(E) of this section. As a result, para- graph (c)(2) of this section does not except the trans- fer from the application of section 362(e)(2) and this section. Further, in order for the election to be ef- fective, FC1 must file the Section 362(e)(2)(C) State- ment on or with its Year 1 U.S. return. See paragraph (d)(3)(ii)(E) of this section. A statement filed by FC2 on or with its Year 2 U.S. return has no effect. Thus, if FC1 does not file the statement, the election does not become effective and basis is determined under the general rule of section 362(e)(2). (v) Nonrecognition transfer of loss duplication property outside United States, transferee later be- comes engaged in U.S. trade or business . The facts are the same as in paragraph (i) of this Example 12, except that, in addition, on December 31, Year 1, FC2 transfers Asset 1 to FC3 in a transferred basis transac- tion. In Year 2, FC3 becomes engaged in a U.S. trade or business and as a result becomes a person required to file a U.S. return; Asset 1 is not used in or con- nected with the U.S. trade or business or otherwise subject to Federal income tax. FC3’s becoming en- gaged in a U.S. trade or business is an event described in paragraph (d)(3)(ii)(F) of this section because FC3, a person who holds loss duplication property with a basis determined by FC2’s basis in the property, will be required to file a U.S. return as a result of its be- coming engaged in a U.S. business. As a result, para- graph (c)(2) of this section does not except the trans- fer from the application of section 362(e)(2) and this section. Under paragraph (d)(3)(ii)(F) of this section, FC3 must include the Section 362(e)(2)(C) Statement for the original transfer on or with its Year 2 U.S. re- turn in order for the section 362(e)(2)(C) election for the original transfer to be effective. (i) [Reserved]. (j)Effective/applicability date.This section applies to transactions occurring after September 3, 2013, unless effected pursuant to a binding agreement that was in effect prior to September 3, 2013, and at all times thereafter. In addition, taxpayers may apply these regulations to transac- tions occurring after October 22, 2004. Par. 4. In §1.705–1, paragraph (a)(9) is added to read as follows: §1.705–1 Determination of basis of partner’s interest. (a) * * * (9) For basis adjustments necessary to coordinate sections 705 and 362(e)(2), see §1.362–4(f)(i). ***** Par. 5. In §1.1367–1, a new sentence is added at the end of paragraph (c)(2) to read as follows: §1.1367–1 Adjustments to basis of shareholder’s stock in an S corporation. ***** (c) * * * (2) * * * For basis adjustments nec- essary to coordinate sections 1367 and 362(e)(2), see §1.362–4(f)(ii). ***** PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT Par. 6. The authority citation for part 602 continues to read as follows: Authority: 26 U.S.C. 7805 Par. 7. In §602.101, paragraph (b) is amended by adding the following entries to the table in numerical order to read as follows: §602.101 OMB Control numbers. ***** (b) * * * CFR part or section where identified and described Current OMB control No. ***** 1.336–2........................................................... 1545–2125 1.336–4........................................................... 1545–2125 ***** 1.362 –4 ........................................................... 1545–2247 ***** Beth Tucker, Deputy Commissioner for Operations Support. Approved August 23, 2013Mark J. Mazur, Assistant Secretary oftheTreasury(TaxPolicy). 2013–39 I.R.B.239September 23, 2013 (Filed by the Office of the Federal Register on August 30, 2013, 8:45 a.m., and published in the issue of the Federal Register for September 3, 2013, 78 F.R. 54156) Section 2032A.—Valuation of Certain Farm, etc., Real Property 26 CFR 20.2032A–4: Method of valuing farm real property. Special Use Value; Farms; Interest Rates. The 2013 interest rates to be used in computing the special use value of farm real property for which an election is made under section 2032A of the Code are listed for estates of decedents. Rev. Rul. 2013–19 This revenue ruling contains a list of the average annual effective interest rates on new loans under the Farm Credit System. This revenue ruling also contains a list of the states within each Farm Credit System Bank Territory. Under § 2032A(e)(7)(A)(ii) of the In- ternal Revenue Code, rates on new Farm Credit System Bank loans are used in com- puting the special use value of real prop- erty used as a farm for which an election is made under § 2032A. The rates in Table 1 of this revenue ruling may be used by es- tates that value farmland under § 2032A as ofadatein2013. Average annual effective interest rates, calculated in accordance with § 2032A(e)(7)(A) and § 20.2032A–4(e) of the Estate Tax Regulations, to be used under § 2032A(e)(7)(A)(ii), are set forth in the accompanying Table of Interest Rates (Table 1). The states within each Farm Credit System Bank Territory are set forth in the accompanying Table of Farm Credit System Bank Territories (Table 2). Rev. Rul. 81–170, 1981–1 C.B. 454, contains an illustrative computation of an average annual effective interest rate. The rates applicable for valuation in 2012 are in Rev. Rul. 2012–26, 2012–39 I.R.B. 358. For rate information for years prior to 2012, see Rev. Rul. 2011–17, 2011–33 I.R.B. 160, and other revenue rulings that are referenced therein. DRAFTING INFORMATION The principal author of this revenue ruling is Lane Damazo of the Office of the Associate Chief Counsel (Passthroughs and Special Industries). For further information regarding this revenue ruling, contact Lane Damazo at (202) 622–3090 (not a toll-free call). REV. RUL. 2013–19 TABLE 1 TABLE OF INTEREST RATES (Year of Valuation 2013) Farm Credit System Bank Servicing State in Which Property is LocatedRate AgFirst,FCB ....................................................................... 5.49 AgriBank,FCB ..................................................................... 5.03 CoBank,ACB ...................................................................... 4.56 Texas,FCB ........................................................................ 4.99 REV. RUL. 2013–19 TABLE 2 TABLE OF FARM CREDIT SYSTEM BANK TERRITORIES Farm Credit System BankLocation of Property AgFirst,FCB ............................................ Delaware,DistrictofColumbia,Florida,Georgia,Maryland, North Carolina, Pennsylvania, South Carolina, Virginia, West Virginia. AgriBank,FCB .......................................... Arkansas, Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, Wisconsin, Wyoming. CoBank,ACB ........................................... Alaska,Arizona,California,Colorado,Connecticut,Hawaii, Idaho, Kansas, Maine, Massachusetts, Montana, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oklahoma, Oregon, Rhode Island, Utah, Vermont, Washington. Texas,FCB.............................................. Alabama,Louisiana,Mississippi,Texas. September 23, 20132402013–39 I.R.B. Section 5000A.—Require- ment to Maintain Minimum Essential Coverage T.D. 9632 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 Shared Responsibility PaymentforNotMaintaining Minimum Essential Coverage AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains final regulations on the requirement to maintain minimum essential coverage enacted by the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, as amended by the TRICARE Affirmation Act and Pub- lic Law 111–173. These final regulations provide guidance to individual taxpayers on the liability under section 5000A of the Internal Revenue Code for the shared re- sponsibility payment for not maintaining minimum essential coverage and largely finalize the rules in the notice of proposed rulemaking (REG–148500–12) published in theFederal Register(78 FR 7314) on February 1, 2013. DATES:Effective Date:These regulations are effective on August 30, 2013. Applicability Date:For date of applica- bility, see §1.5000A–5(c). FOR FURTHER INFORMATION CONTACT: Sue-Jean Kim or John B. Lovelace at (202) 622–4960 (not a toll-free number). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collection of information contained in these regulations has been reviewed and approved by the Office of Manage- ment and Budget in accordance with the Paperwork and Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545–0074. The collection of information in these final regulations is in §1.5000A–3 and §1.5000A–4. The information is nec- essary to determine whether the shared responsibility payment provision applies to a taxpayer, and, if it applies, the amount of the penalty. The likely respondents are individuals required to file Federal income tax returns undersection 6012(a)(1). Estimated total annual reporting bur- den: 7,500,000 hours. Estimated annual burden hours per re- spondent varies from .1 to .5 hours, de- pending on individual circumstances, with an estimated average of .21 hours. Estimated number of respondents: 36,000,000. Estimated frequency of responses: An- nually. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget. Book or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by section 6103. Background This document amends the Income Tax Regulations (26 CFR part 1) by adding fi- nal regulations under section 5000A on the individual shared responsibility provision. Section 5000A was enacted by the Patient Protection and Affordable Care Act, Pub- lic Law 111–148 (124 Stat. 119 (2010)), and the Health Care and Education Recon- ciliation Act of 2010, Public Law 111–152 (124 Stat. 1029 (2010)) (collectively, the Affordable Care Act). On February 1, 2013, a notice of proposed rulemaking (REG–148500–12) was published in the Federal Register(78 FR 7314). Written comments responding to the notice of proposed rulemaking of February 1, 2013, were received. The comments are available for public inspection atwww.reg- ulations.govor on request. A public hearing was held on May 29, 2013. After considering all the comments, the pro- posed regulations are adopted as revised by this Treasury decision. The comments and revisions are discussed in the pream- ble. In related rulemaking, on July 1, 2013, the Department of Health and Human Services (HHS) promulgated final reg- ulations implementing certain functions of the Affordable Insurance Exchanges (Exchanges) to determine eligibility for and grant certain exemptions from the shared responsibility payment under sec- tion 5000A, and implementing the re- sponsibilities of the Secretary of HHS, in coordination with the Secretary of the Treasury, to designate other health benefits coverage as minimum essential coverage under section 5000A(f)(1)(E). Patient Protection and Affordable Care Act: Exchange Functions: Eligibility for Exemptions; Miscellaneous Minimum Es- sential Coverage Provisions, 78 FR 39494 (codified at 45 CFR pts. 155 and 156) (the HHS MEC regulations). The HHS MEC regulations provide, among other things, eligibility standards for the hardship ex- emption, setting forth both general and specific descriptions of the circumstances in which an Exchange will grant a hard- ship exemption certification as well as those in which a hardship exemption may be claimed on a Federal income tax return. The HHS MEC regulations also designate certain coverage as minimum essential coverage and outline substantive and pro- cedural requirements for other types of coverage to be recognized as minimum essential coverage. Summary of Comments and Explanation of Revisions I.Maintenance of Minimum Essential Coverage A.Coverage for a month The proposed regulations provide that, for any calendar month, an individual has minimum essential coverage if the individ- ual is enrolled in and entitled to receive benefits under a program or plan that is minimum essential coverage for at least one day during the month. A commentator recommended that an individual be covered for a month if the individual is enrolled in and entitled to receive benefits under a plan or program identified as minimum essential coverage for a majority of the days in the month. 2013–39 I.R.B.241September 23, 2013 The commentator asserted that allowing one day of enrollment in a month to sat- isfy the coverage requirement would per- mit individuals to obtain minimum essen- tial coverage for only one day and then forgo it for the rest of the month with- out any adverse consequence under section 5000A. The Treasury Department and the IRS considered a rule requiring coverage for a majority of days in a month but chose the one-day rule because it provides ad- ministrative convenience for both taxpay- ers and the IRS. Without the one-day rule, taxpayers and the IRS would need to de- termine the number of days each person in a shared responsibility family is covered in each month of a taxable year. Accordingly, the final regulations do not adopt this rec- ommendation. The Treasury Department and the IRS will reconsider this rule if fu- ture developments indicate that the rule is being abused, for example, if individuals obtain coverage for a single day in a month over the course of several months in a year. A commentator requested that the fi- nal regulations provide that an individ- ual who has submitted an application for Medicaid but is awaiting approval for en- rollment have minimum essential cover- age while the application is pending ap- proval. In general, Medicaid coverage is granted retroactively to the date the appli- cation is filed. Section 5000A(a) requires that an individual have minimum essential coverage for a month. If retroactive cover- age is granted, an applicant has minimum essential coverage. If the application is de- nied, the applicant does not have minimum essential coverage. Accordingly, the final regulations do not adopt this recommenda- tion. However, an individual without cov- erage may be eligible for an exemption, such as a short coverage gap exemption. See §1.5000A–3 and 45 CFR 155.605. B.Liability for shared responsibility payment 1. Liability for Dependents In general, section 151 allows individ- ual taxpayers a deduction for personal ex- emptions for the taxpayer, the taxpayer’s spouse, and any dependents (as defined in section 152) of the taxpayer for the taxable year. Section 152 defines dependent to in- clude a taxpayer’s qualifying children and qualifying relatives. Although a section 151 deduction is allowable to a taxpayer for the taxpayer’s dependents (as defined in section 152), a deduction is allowed to a taxpayer under section 151 only if the taxpayer properly claims the dependent. Consistent with section 5000A(b)(3), the proposed regulations provide that a tax- payer is liable for the shared responsibility payment imposed for any individual for a month in a taxable year for which the indi- vidual is the taxpayer’s dependent (as de- fined in section 152) for that taxable year. Whether the taxpayer actually claims the individual as a dependent for the taxable year does not affect the taxpayer’s liability for the shared responsibility payment for the individual. Several commentators recommended modifications to the section 5000A rule addressing liability for dependents. Some commentators recommended that a tax- payer’s liability for the shared responsi- bility payment be limited to individuals eligible for the same minimum essential coverage for which the taxpayer is eligi- ble. The commentators stated that many taxpayers are unable to enroll their quali- fying children in their employer-provided plans. Other commentators recommended that a taxpayer’s liability under section 5000A extend solely to those dependents who meet the requirements to be a qual- ifying child under section 152, so that a taxpayer’s qualifying relatives would be disregarded. In addition, commentators requested that section 5000A liability ex- tend only to those dependents who are actually claimed bythe taxpayer. They stated that the complexity in identifying a potential dependentbefore the taxable year begins, particularly a qualifying rel- ative, would prevent them from making informed coverage decisions. The com- mentators claimed that, unless the rule is revised, those taxpayers may unexpect- edly be liable for shared responsibility payments for dependents for whom a de- duction under section 151 is not claimed. Section 5000A(b)(3) provides that a taxpayer is liable for the shared responsi- bility payment for an individual without minimum essential coverage if the individ- ual is the taxpayer’s dependent as defined in section 152. While the definition of family size in section 5000A(c)(4)(A) refers to dependents for whom a taxpayer claims a deduction under section 151, sec- tion 5000A(b)(3) refers to section 152, and section 152 defines dependent based on status as a qualifying child or qualifying relative. Accordingly, the final regulations retain the rule imposing liability on the taxpayer who may claim an individual as a dependent. Other commentators recommended that a non-custodial parent who must provide the health care of a childunder a separation agreement, divorce decree, court order, or other similar legal obligation and who fails to provide that health care be liable for the shared responsibilitypayment attributable to that child even if the child is the custo- dial parent’s dependent under section 152. Section 5000A placesliability for a de- pendent’s lack of minimum essential cov- erage on the taxpayer who may claim the individual as a dependent. Section 5000A does not provide that this liability may be assigned to another taxpayer, even if the other taxpayer has a legal obligation to provide the child’s health care. Accord- ingly, the final regulations do not adopt this recommendation. However, HHS has ad- dressed the situation described in the com- ments in recently issued guidance, permit- ting Exchanges to grant a hardship exemp- tion under 45 CFR 155.605(g)(1) to the custodial parent for a child in this situation if the child is ineligible for coverage un- der Medicaid or the Children’s Health In- surance Program (CHIP). See HHS Cen- ter for Consumer Information & Insurance Oversight, Guidance on Hardship Exemp- tion Criteria and Special Enrollment Peri- ods (June 26, 2013). 2. Special Rule for Adopted Children The proposed regulations provide spe- cial rules for determining liability for the shared responsibilitypayment attributable to children adopted or placed in foster care during a taxable year. If a taxpayer legally adopts a child and is entitled to claim the child as a dependent for the taxable year when the adoption occurs, the taxpayer is not liable for a shared responsibility pay- ment attributable to the child for the month of the adoption and any preceding month. Conversely, if a taxpayer who is entitled to claim a child as a dependent for the tax- able year places the child for adoption dur- ing the year, the taxpayer is not liable for a shared responsibilitypayment attributable September 23, 20132422013–39 I.R.B. to the child for the month of the adoption and any following month. Similar to the comment on a cus- todial parent’s liability, commentators recommended that a taxpayer’s liability for shared responsibility payment for an adopted child be basedon the state law assigning responsibility for the child’s health care, not when a child is adopted or placed for foster care. As explained previously in sec- tion I.B.1. of this preamble, section 5000A(b)(3) provides that a taxpayer is liable for the sharedresponsibility pay- ment for an individual without minimum essential coverage if the individual is the taxpayer’s dependent as defined in sec- tion 152. Determining when a taxpayer is liable for an adopted child’s health care under numerous and varying state laws would introduce considerable administra- tive difficulty and uncertainty into the im- plementation and administration of section 5000A. Accordingly, the final regulations do not modify the rule for determining liability for the shared responsibility pay- ment attributable to children adopted or placed in foster care during a taxable year. C.Definitions of terms 1. Insurance-related Terms Section 5000A(f)(5) provides that any term used in section 5000A that is also used in Title I of the Affordable Care Act has the same meaning as when used in that Title. To provide additional guidance and clarity, the final regulations specifically identify the terms used in section 5000A that also are used in Title I of the Afford- able Care Act. The additional terms de- fined include health insurance coverage, individual health insurance coverage, indi- vidual market, and state. 2. Household Income Section 5000A(c)(4)(B) provides that the termhousehold incomemeans the modified adjusted gross income of the taxpayer plus the modified adjusted gross income of all members of the taxpayer’s family required to file a tax return un- der section 1 for the taxable year. The proposed regulations provide that the de- termination of whether a family member is required to file a return is made without regard to section 1(g)(7). Under section 1(g)(7), a parent may, if certain require- ments are met, elect to include in the parent’s gross income, the gross income of his or her child. If the parent makes the election, the child is treated as having no gross income for the taxable year. The final regulations remove “without regard to section 1(g)(7).” The proposed regula- tions’ use of the phrase “without regard to section 1(g)(7)” implies that the child’s gross income is included in both the par- ent’s adjusted gross income and the child’s adjusted gross income in determining household income. The final regulations remove the phrase to clarify that if a parent makes an election under section 1(g)(7), household income includes the child’s gross income included on the parent’s re- turn and the child is treated as having no gross income. II.Minimum Essential Coverage A.Government-sponsored programs 1. Medicaid Coverage for Pregnant Women The proposed regulations exclude Medicaid coverage for pregnant women under section 1902(a)(10)(A)(i)(IV) and (a)(10)(A)(ii)(IX) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(i)(IV), (a)(10)(A)(ii)(IX)) (“pregnancy-related Medicaid”) from government-sponsored programs constituting minimum essential coverage. Some commentators com- mended this treatment of pregnancy-re- lated Medicaid. Other commentators expressed concern that women who have pregnancy-related Medicaid and who do not have any form of minimum essen- tial coverage would, under the proposed regulations, be subject to a shared re- sponsibility payment. The commenta- tors recommended that pregnancy-related Medicaid be considered minimum essen- tial coverage solely for section 5000A (and not section 36B).In the alternative, they recommended that women enrolled in pregnancy-related Medicaid who are not also enrolled in services providing minimum essential coverage be granted a hardship exemption from the shared re- sponsibility payment. The final regulations do not adopt the recommendation to treat pregnancy-re- lated Medicaid as minimum essential coverage solely for section 5000A. As explained in the preamble to the proposed regulations, states have the option to pro- vide pregnant women with full Medicaid coverage as pregnancy-related Medicaid. Some states adopt this option. Other states do not provide full Medicaid coverage as pregnancy-related Medicaid. The final regulations continue to provide that preg- nancy-related Medicaid is not minimum essential coverage. In addition, the final regulations do not adopt the recommendation that women with pregnancy-related Medicaid be granted a hardship exemption because rules regarding eligibility for the hardship exemption fall under the jurisdiction of HHS. See section 5000A(e)(5). However, individuals who are eligible for pregnancy-related Medicaid may not know at open enrollment for the 2014 coverage year that such coverage is not minimum essential coverage. Accord- ingly, the Treasury Department and the IRS anticipate issuing guidance providing that women covered with pregnancy-re- latedMedicaidforamonthin2014will not be liable for the shared responsibility payment for that month. 2. Section 1115 Demonstration Projects Section 1115 of the Social Security Act (42 U.S.C. 1315) authorizes the Sec- retary of HHS to approve experimen- tal, pilot, or demonstration projects that promote the objectives of the Medicaid program (Section1115 demonstration projects). These projects give states flex- ibility to test new or existing approaches to financing and delivering Medicaid. Some Section 1115 demonstration projects provide full Medicaid benefits, while others provide a specific and narrow set of benefits similar to the optional coverage of family planning services under section 1902(a)(10)(A)(ii)(XXI) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XXI)) or the optional coverage of tuberculosis-related services under section 1902(a)(10)(A)(ii)(XII) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XII)). The proposed regulations do not specif- ically address whether Section 1115 demonstration projects constitute Med- icaid coverage under Title XIX of the Social Security Act for purposes of sec- tion 5000A. A number of commentators 2013–39 I.R.B.243September 23, 2013 recommended against considering as min- imum essential coverage Section 1115 demonstration projects that provide a spe- cific and narrow set of benefits. The final regulations reserve on ad- dressing the status of Section 1115 demon- stration projects as minimum essential coverage and, accordingly, do not address the commentators’ recommendation that a specific and narrow set of benefits pro- vided under a Section 1115 demonstration project be excludedfrom the definition of minimum essential coverage. It is an- ticipated that future regulations that will be effective starting January 1, 2014 will provide that coverage authorized under a Section 1115 demonstration project is not government-sponsored minimum essen- tial coverage. However, certain coverage may be recognized as minimum essen- tial coverage by the Secretary of HHS, in consultation with the Secretary of the Treasury, under section 5000A(f)(1)(E). Finally, it is anticipated that to the ex- tent future guidance excludes benefits pro- vided under certain Section 1115 demon- stration projects from minimum essential coverage, the guidance also will provide that individuals who are enrolled in a Sec- tion 1115 demonstration project that is not minimum essential coverage for a month in 2014 will not be liable for the shared re- sponsibility payment for that month. 3. Medicaid Premium Assistance Programs The proposed regulations do not specif- ically address whether and to what extent Medicaid premium assistance programs are minimum essential coverage. Com- mentators recommended that, to preserve affected Medicaid beneficiaries’ ability to receive the premium tax credit under section 36B, Medicaid premium assis- tance programs, which are intended to supplement comprehensive coverage, be excluded from the definition of minimum essential coverage. Commentators re- ferred to, in particular, the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) state plan option (commonly referred to as the “Katie Beckett option”), coverage under an optional Medicaid cov- erage group authorized by the Family Opportunity Act of 2006 (FOA), home and community based services waivers, and “Katie Beckett” waivers. Medicaid premium assistance programs function as a service delivery mechanism for benefits covered under the Medicaid program and do not solely supplement a private health insurance plan. In general, Medicaid premium assistance programs are provided under the authority of sec- tions 1905, 1906, and 1906A of the Social Security Act (42 U.S.C. 1396d, 1396e, and 1396e–1) to individuals described in section 1902 of the Social Security Act (42 U.S.C. 1396a) who are eligible for full Medicaid benefits. Under section 1906 or 1906A of the So- cial Security Act, states may use Medicaid funds to pay premiums and cost sharing incurred by Medicaid-eligible individuals to enroll in employer-sponsored coverage if it is cost-effective for the state to do so (as compared to the cost of providing cov- ered services through a standard service delivery mechanism, such as fee-for-ser- vice or per-patient payments to a managed care organization). States exercising this option must provide “wrap around” cover- age to ensure individuals can access ben- efits covered under the state’s Medicaid program that are not covered under the em- ployer-sponsored insurance. Authority for states to create similar premium assistance programs for individuals to enroll in pri- vate coverage in the individual market is provided in regulations under the author- ity of section 1905(a)(29) of the Social Se- curity Act published by HHS on July 15, 2013, at 42 CFR 435.1015. Individuals enrolled in the premium assistance pro- grams are eligible for full Medicaid ben- efits. Accordingly, the final regulations do not adopt the commentators’ recommen- dation. Instead, coverage under a Medic- aid premium assistance program under the authority of section 1905, 1906, or 1906A of the Social Security Act to individuals described in section 1902 is minimum es- sential coverage. Section 134(a) of TEFRA (Public Law 97–248) added section 1902(e)(3) of the Social Security Act (42 U.S.C. 1396a(e)(3)), under which states may pro- vide Medicaid to a disabled child who requires an institutional level of care (such as that provided in a nursing facility) with- out regard to the income of the child’s parent(s). A child eligible under this op- tion is eligible for full Medicaid benefits. Enrollment of the child in private health insurance is not required as a condition of eligibility under the TEFRA option. Whenever a Medicaid beneficiary is en- rolled in other coverage, Medicaid serves as the secondary payer. Thus, if a child enrolled in Medicaid under this option also has other coverage, Medicaid will serve as the secondary payer, and in that sense will wrap around the child’s private insurance coverage. Because an eligible child receives full Medicaid benefits, the coverage provided is minimum essential coverage. Sections6062(a)(1)(A)(iii) and 6062(a)(1)(B) of FOA (Pub- lic Law 109–171) added sections 1902(a)(10)(A)(ii)(XIX) and 1902(cc) of the Social Security Act, under which states may provide Medicaid to disabled children who are not otherwise eligible for Medicaid because their income is too high. Children eligible for Medicaid under this option are entitled to the full Medicaid benefits provided to all other children enrolled in Medicaid. However, under section 1902(cc)(2)(A) of the Social Security Act, if the child’s parents have access to employer-sponsored coverage in which the child can enroll and the employer pays at least 50 percent of the annual premium for coverage of the child under the employer plan, the family is required to enroll the child in the employer-sponsored coverage, and Medicaid will wrap around that coverage, providing services not covered under the employer plan. If the parents do not have access to employer-sponsored coverage for the child or if the employer does not contribute at least the minimum amount required, the family is not required to enroll the child in the coverage, and the Medicaid program willcover all Medicaid benefits. In either situation, the child is eligible for all Medicaid benefits. Therefore, coverage under this option is minimum essential coverage. In addition, under Section 1915(c) of the Social Security Act (42. U.S.C. 1396n(c)) states have the authority to pro- vide home and community based services to certain individuals covered under the Medicaid state plan in addition to the full Medicaid benefit package. Because these individuals receive comprehensive Med- icaid benefits, coverage under a home and community based services waiver autho- rized under section 1915(c) of the Social September 23, 20132442013–39 I.R.B. Security Act is minimum essential cover- age. The treatment of Medicaid coverage provided through a “Katie Beckett” waiver referred to by the commentators is ad- dressed in section II.A.2. of this preamble, discussing Section 1115 demonstration projects. 4. Medicaid for the Medically Needy The Social Security Act provides states with flexibility to extend Medicaid eligi- bility to individuals with high medical ex- penses who would otherwise be eligible for Medicaid but for their income level (medically needy individuals). See sec- tion 1902(a)(10)(C) of the Social Security Act (42 U.S.C. 1396a(a)(10)(C)) and 42 CFR §435.300 and following (Subpart D). Over half of the states have opted to pro- vide coverage to medically needy individ- uals. In general, individuals whose income is in excess of the maximum allowed for Medicaid eligibility but who are otherwise eligible for Medicaid may “spend down” their income, based on incurred medical expenses, and therebybecome eligible for the benefits provided for medically needy individuals in the state. States provid- ing coverage to medically needy individ- uals must establish a “budget period” of between one and six months. Eligibility for coverage as a medically needy individ- ual, which must be determined each bud- get period, is provided only after an indi- vidual incurs sufficient medical expenses to “spend down” to the qualifying income level. Thus, depending on an individ- ual’s medical needs and the options exer- cised by the state program, eligibility may be assessed as frequently as every month, and an individual may move in and out of Medicaid coverage multiple times in a year. States are permitted, and some have adopted the option, to offer benefits to the medically needy that are more limited than the benefits generally provided to Medic- aid beneficiaries. Commentators requested excluding Medicaid coverage provided to medically needy individuals from the definition of minimum essential coverage because the benefits available may be limited. In ad- dition, treating Medicaid coverage for the medically needy as minimum essential coverage can lead those individuals to experience multiple changes in premium tax credit eligibility throughout a year, creating administrative complexity. The final regulations reserve on whether Medicaid coverage provided to a medically needy individual is minimum essential coverage. It is anticipated that future regulations that will be effective starting in 2014 will provide that Medicaid coverage provided to a medically needy individual is not government-sponsored minimum essential coverage. However, certain coverage of this type may be rec- ognized as minimum essential coverage by the HHS Secretary, in consultation with the Treasury Secretary, under section 5000A(f)(1)(E). To the extent that future guidance excludes certain Medicaid coverage pro- vided to medically needy individuals from the definition of minimum essential cov- erage, it is anticipated that the guidance also will provide that individuals receiving Medicaid coverage provided to medically needy individuals for a month in 2014 will not be liable for the shared responsibility payment for that month. 5. TRICARE In accordance with section 5000A(f)(1)(A)(v), the proposed regu- lations provide that minimum essential coverage under government-sponsored programs includes medical coverage under chapter 55 of Title 10, U.S.C., including coverage under the TRICARE program. However, after publishing the proposed regulations, the Treasury Department and the IRS identified two programs under chapter 55 of Title 10, U.S.C., as providing benefits and services that are limited either in availability or in scope: (1) the program providing care limited to the space available in a facility for the uniformed services for individuals excluded from TRICARE coverage under section 1079(a), 1086(c)(1), or 1086(d)(1) of Title 10, U.S.C.; and (2) the program for individuals not on active duty for an injury, illness, or disease, incurred or ag- gravated in the line of duty under sections 1074a and 1074b of Title 10, U.S.C. The proposed regulations exclude cer- tain government-provided health care programs from the definition of minimum essential coverage because they do not provide a comprehensive level of ben- efits. Similarly, certain limited benefit TRICARE programs do not provide a comprehensive level of benefits. It is an- ticipated that future regulations that will be effective starting in 2014 will provide that coverage under a limited benefit TRI- CARE program is not minimum essential coverage. However, the final regulations reserve on the status of these programs as minimum essential coverage. It is anticipated that if future guidance excludes the limited-availability TRI- CARE program under section 1079(a), 1086(c)(1), or 1086(d)(1) of Title 10, U.S.C., and the limited-scope line-of-duty TRICARE program under sections 1074a and 1074b of Title 10, U.S.C., from the definition of minimum essential cover- age, the guidance also will provide that individuals enrolled in either TRICARE program for any month in 2014 will not be liable for a shared responsibility payment for that month. B.Eligible employer-sponsored coverage 1. Self-Insured Group Health Plans The preamble to the proposed regula- tions explains that a self-insured group health plan is an eligible employer-spon- sored plan. Several commentators re- quested additional clarification concern- ing the treatment of a self-insured group health plan because these plans are not offered in a large or small group market within a state. The rule in the proposed regulations is revised to clarify that a self-insured group health plan is an eligi- ble employer-sponsored plan, regardless of whether the plan could be offered in the large or small group market in a state. 2. Arrangements to Provide Employer-Subsidized Coverage under Plans in the Individual Market The proposed regulations do not specif- ically address arrangements in which an employer provides subsidies or funds a pre-tax arrangement for employees to use to obtain coverage under plans offered in the individual market (as defined in section 5000A(f)(1)(C)). The Treasury Department and the IRS received several comments on arrangements of this type. One commentator suggested that certain arrangements ofthis type be treated as el- igible employer-sponsored plans, arguing that treating these arrangements as eligible 2013–39 I.R.B.245September 23, 2013 employer-sponsored plans would increase flexibility for employers and employees in satisfying their respective shared respon- sibility requirements. The final regulations do not specifically address these arrangements. It is antic- ipated that future guidance will address the application of section 5000A and the ACA’s insurance market reforms to these types of arrangements. 3. Former Employees The proposed regulations provide that the termemployeeincludes former em- ployees and, as a result, treat coverage provided by an employer to former em- ployees as coverage under an eligible employer-sponsored plan. Commentators noted that retiree coverage may be unlike coverage offered to current employees in terms of cost, scope of benefits, and enrollment opportunities and, therefore, should be treated differently from other employer-provided coverage. Employer-sponsored group health plans offered to former employees are treated similarly for purposes of the Public Health Service Act, the Employee Re- tirement Income Security Act, and other provisions of the Code. Therefore, the final regulations do not adopt this sugges- tion, and retiree coverage under a group health plan is minimum essential cov- erage. However, the final regulations provide that, for the lack of affordable coverage exemption, an individual will not be eligible for retiree coverage unless the individual enrolls. Therefore, an individ- ual who is eligible for retiree coverage but does not enroll disregards that eligibility in determining qualification for the lack of affordable coverage exemption. 4. Plans Offered on Behalf of Employers The Treasury Department and the IRS received comments asking whether med- ical coverage offered to employees by an organization acting on behalf of an employer qualifies as an eligible em- ployer-sponsored plan. For example, com- mentators asked whether a multiemployer plan or a single employer collectively-bar- gained plan is an eligible employer-spon- sored plan for the employees covered by the collective bargaining arrangement and eligible to participate in the plan. In addi- tion, commentators asked whether a plan offered to an employer’s employees by a third party, such as a professional em- ployer organization or leasing company, is an eligible employer-sponsored plan for the employees eligible to participate in the plan. The final regulations are revised to provide that a plan offered by an employer to an employee includes a plan offered to an employee on behalf of an employer. No inference is intended from this treatment that the third party is the employer for this or any other provision of the Code or related laws. 5. Government-sponsored programs that are eligible employer-sponsored plans The proposed regulations provide that a government-sponsored program (as de- scribed in §1.5000A–2(b)(2) of the pro- posed regulations) is not an eligible em- ployer-sponsored plan. However, some in- dividuals are eligible for minimum essen- tial coverage under government-sponsored plans by reason of employment with the United States government. For example, the Nonappropriated Fund Health Bene- fits Program of the Department of Defense, established under section 349 of the Na- tional Defense Authorization Act for Fis- cal Year 1995 (Public Law 103–337; 10 U.S.C. 1587 note), is offered by an instru- mentality of the Department of Defense to its employees. Accordingly, the final reg- ulations provide that the Nonappropriated Fund Health Benefits Program is a gov- ernment-sponsored program and an eligi- ble employer-sponsored plan. The Trea- sury Department and the IRS are consider- ing whether other government-sponsored programs are eligible employer-sponsored plans. C.Plan in the individual market The proposed regulations provide that a plan in the individual marketmeans health insurance coverage offered to individuals not in connection with a group health plan, including a qualified health plan offered by an Exchange. Commentators stated that this definition is ambiguous about whether qualified health plans are plans in the individual market. The final regu- lations clarify that qualified health plans offered through Exchanges are plans in the individual market. Another commentator asked whether a plan offered to one specific individual is a plan in the individual market. A plan of- fered to one specific individual is a plan in the individual market only if the plan is health insurance coverage under section 2791(b)(1) of the Public Health Service Act, is not short-term limited duration cov- erage, and is offered in the individual mar- ket within a state. The final regulations clarify the meaning of the term plan in the individual market by restating definitions of other essential terms. D.Foreign issuer coverage 1. In General Under section 5000A(f)(4) and §1.5000A–1(b)(2) of the final regulations, an individual is treated as having mini- mum essential coverage for a month if the individual is a bona fide resident of a United States possession for the month, or if the month occurs during any period de- scribed in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the indi- vidual. Section 911(d)(1)(A) is applicable to a citizen of the United States who has a tax home outside the United States and is a bona fide resident of a foreign country or countries during an uninterrupted pe- riod that includes an entire taxable year. Section 911(d)(1)(B) is applicable to a U.S. citizen or U.S. resident (as defined in section 7701(b)) who has a tax home outside the United States and is present in a foreign country or countries for at least 330 full days during a period of 12 consecutive months. A commentator expressed a concern that a United States citizen or national who resides outside the United States may be subject to the shared responsibility penalty even if the individual has health care coverage provided by a foreign health insurance issuer (sometimes referred to as a form of expatriate coverage) or the government of the foreign country where the individual resides. The commentator requested that individuals in this situation be exempt from section 5000A. Under section 5000A(f)(4), a United States citizen or national satisfying the re- quirements of section 911(d)(1) is deemed to have minimum essential coverage. If the individual does not satisfy those re- quirements, the remaining provisions of September 23, 20132462013–39 I.R.B. section 5000A apply. Accordingly, the fi- nal regulations do not adopt the recom- mendation. The same commentator and another commentator asked whether expatriate coverage or coverage provided by a for- eign insurance issuer to foreign nationals lawfully present in the United States for an extended period of time is minimum essential coverage. The commentators acknowledged that some coverage pro- videdbyaforeignhealthinsuranceissuer is not offered in the small or large group market, or the individual market, within a state. However, the commentators noted that the foreign health care coverage may be substantially similar to other types of plans recognized as minimum essential coverage. Under section 1304(d) of the Afford- able Care Act (42 U.S.C. 18024(d)) and the final regulations, the termstatemeans each of the 50 states and the District of Co- lumbia. Coverage or a plan provided by an issuer that is not offered within a state is neither an eligible employer-sponsored plan nor a plan in the individual market. Accordingly, the final regulations do not adopt this recommendation. However, to provide relief in the situa- tions that the two commentators described, the HHS MEC regulations provide a process by which a sponsor of a health plan, whether domestic or foreign, may ap- ply for recognition as minimum essential coverage under section 5000A(f)(1)(E). See 45 CFR 156.604. 2. Territory of the United States A commentator questioned whether coverage offered by issuers located in ter- ritories of the United States is minimum essential coverage. Insured plans must be offered within a state to be treated as an eligible employer-sponsored plan or as a plan in the individual market. Section 1304(d) of the Affordable Care Act (42 U.S.C. 18024(d)) and the final regulations provide that the termstatemeans each of the 50 states and the District of Columbia. Consequently, in general, health insurance coverage and insured group health plans that are not offered within one of the 50 states or the District of Columbia are nei- ther eligible employer-sponsored plans nor plans in the individual market. However, section 1323(a)(1) of the Af- fordable Care Act (42 U.S.C. 18043(a)(1)) provides that a territory electing to estab- lish an Exchange in accordance with part II of subtitle D of the Affordable Care Act is treated as a state for applying basic rules governing qualified health plans offered through Exchanges. As discussed earlier in this preamble, a qualified health plan offered through an Exchange is a plan in the individual market within a state. Ac- cordingly, the final regulations clarify that a qualified health plan offered through an Exchange established by and within a ter- ritory of the United States under section 1323(a)(1) of the Affordable Care Act is a plan in the individual market within a state. III.Exempt Individuals A.Members of recognized religious sects or divisions Consistentwithsection 5000A(d)(2)(A), the proposed regulations provide that individuals who are members of a recognized religious sect or division of the sect described in section 1402(g)(1) and who are adherents of the established tenets or teachings of the sect or division are eligible to receive a religious con- science exemption certification from an Exchange. Commentators recommended that section 5000A(d)(2)(A) be narrowly construed to limit the ability of parents who qualify for this religious conscience exemption to apply for a religious con- science exemption on behalf of any minor children who, owing to their youth, should not be considered full members of a recognized religious sect or division of the sect. Section 5000A(d)(2)(A) does not make a distinction between full and less than full membership in a sect or division. Accordingly, the final regulations do not adopt this recommendation. However, as explained in the preamble to the proposed regulations, the section 5000A religious conscience exemption is administered by HHS through Exchanges. The HHS MEC regulations permit adult members of a sect or division to apply for the exemption on behalf of their minor children.See45 CFR 155.600 (definitions of applicant and application filer); 45 CFR 155.605(c)(1) (eligibility standards for religious con- science exemption). Those regulations further provide, however, that once a child turns 21 years of age, to maintain the re- ligious conscience exemption the child must reapply for the exemption and attest to membership individually. See 45 CFR 155.605(c)(2). B.Members of health care sharing ministries The proposed regulations provide an exemption for members of health care sharing ministries as defined in section 5000A(d)(2)(B)(ii). Commentators rec- ommended that individuals seeking the exemption based on their membership in health care sharing ministries be re- quired to demonstrate membership for every month of the taxable year for which they seek the exemption. The proposed regulations provide that eligibility for the exemption for members of a health care sharing ministry is determined monthly, and the final regulations retain this rule. C.Exempt noncitizens Section 5000A(d)(3) and the proposed regulations provide that an individual who is not a citizen or national of the United States is exempt for a month if the indi- vidual is not lawfully present in the United States in that month. The proposed reg- ulations provide that, for this exemption, an individual who is not a citizen or na- tional of the United States is treated as not lawfully present in the United States for a month in a taxable year if the individual is either (1) a nonresident alien as defined in section 7701(b)(1)(B) for that taxable year or (2) does not have lawful immigra- tion status in the United States (within the meaning of 45 CFR 155.20) for any day in the month. Many commentators requested guid- ance on how individuals claim the exemp- tion for being not lawfully present in the United States and recommended several reporting methods for this exemption. The final regulations do not adopt any of the recommended reporting methods. How- ever, guidance on claiming exemptions will be provided in forms, instructions, publications, or other guidance published by the IRS, and these comments will be considered in developing that guidance. Commentators also requested that the exemption for individuals not lawfully present in the United States apply to all 2013–39 I.R.B.247September 23, 2013 members of a taxpayer’s family if the tax- payer qualifies for the exemption. Section 5000A applies its coverage requirement and exemptions on an individual basis, which is inconsistent with the commenta- tors’ recommendation. Accordingly, the final regulations do not adopt this sugges- tion. D.Incarcerated individuals Section 5000A(d)(4) provides that an individual is exempt for a month for which the individual is incarcerated (other than incarceration pendingthe disposition of charges). The proposedregulations clarify that an individual confined for at least one day in a jail, prison, or similar penal insti- tution or correctional facility after the dis- position of charges is exempt for the month that includes the day of confinement. A commentator urged that those incar- cerated while awaiting the final disposition of charges also be given an exemption on account of their incarceration. This rec- ommendation is inconsistent with section 5000A(d)(4), which distinguishes between individuals incarcerated while awaiting final disposition of charges and those in- carcerated after the final disposition of charges. Accordingly,the final regulations do not adopt this suggestion. In the alternative, the commentator re- quested treating incarcerated individuals whose Medicaid benefits have been sus- pended as having minimum essential cov- erage. An individual incarcerated pend- ing disposition of charges whose Medic- aid benefits have been suspended remains enrolled in Medicaid,is entitled to receive benefits for healthcare provided outside the state prison system, and is not required to re-enroll in Medicaid at the end of incar- ceration. Thus, treating the individual as covered under Medicaid is consistent with §1.5000A–1(b)(1), which provides that an individual has minimum essential cover- age for the month when the individual is enrolled in and entitled to receive benefits under a program or plan identified as mini- mum essential coverage in §1.5000A–2 for at least one day in the month. Accordingly, an individual incarcerated pending dispo- sition of charges whose Medicaid bene- fits have been suspended is covered under minimum essential coverage, and no revi- sion to the regulations is necessary to ad- dress the commentator’s concern. E.Individuals who cannot afford coverage 1. Household Income To determine affordability of coverage, section 5000A(e)(1)(A) and the proposed regulations require taxpayers to increase household income by the portion of the re- quired contribution made through a salary reduction arrangement and excluded from gross income. The preamble to the pro- posed regulations notes that the informa- tion necessary to make the required adjust- ment may not be readily available to the employee or the IRS and requests com- ments on practicable ways, if any, for mak- ing the adjustment. A commentator stated that the informa- tion required is not readily available. The commentator recommended that, consid- ering the limited effect of the required ad- justment, the IRS postpone enforcement of the adjustment until a later year when the necessary information may become more readily available and when the effect of the adjustment may be accurately assessed. The portion of the required contribution made through a salary reduction arrange- ment that is excluded from gross income includes amounts that an employee pays out of the employee’s salary on a pre-tax basis for minimum essential coverage un- der a cafeteria plan that is an eligible em- ployer-sponsored plan. Although the in- formation may not be readily available, generally it is possible for an employee to identify amounts paid through a salary reduction arrangement that are excluded from the individual’s gross income. In ad- dition, under the HHS MEC regulations, a hardship exemption is available for an individual who lacks access to affordable minimum essential coverage based on pro- jected household income. An individual seeking this exemption must adjust pro- jected household income by the amount paid through a salary reduction arrange- ment for minimum essential coverage that is excluded in the prior year. Accordingly, the final regulations do not adopt this rec- ommendation. Several commentators suggested allow- ing an exemption or safe harbor for indi- viduals whose income early in the taxable year appears to entitle them to the lack of affordable coverage exemption and who, as a result, do not obtain minimum essen- tial coverage. If these individuals have large increases in income later in the year, they may be liable for the shared respon- sibility payment if no other exemption ap- plies. The final regulations do not adopt this recommendationbecause it is not ad- ministrable. The IRS does not have the monthly income data necessary to verify eligibility for the proposed safe harbor or exemption. However, as explained in this preamble, the HHS MEC regulations pro- vide for a prospective hardship exemption based on a lack of affordable coverage de- termined on the basis of projected house- hold income. Individuals may mitigate po- tential adverse consequences of mid-year increases in household income by applying for this hardship exemption prospectively. 2. Required Contribution Percentage One commentator requested a spe- cial rule for determining the inflation adjustment of the required contribution percentage for low- income taxpayers to provide relief if health care expenses grow more rapidly than incomes. Section 5000A(e)(1)(D) provides specific rules for annually calculating a uniform required contribution inflationadjustment. Accord- ingly, the final regulations do not adopt this suggestion. The commentator also requested a spe- cial rule to avoid requiring individuals to visit Exchanges to apply for a hardship ex- emption. Under section 5000A(e)(5), the authority to prescribe the procedures for applying for exemptions resides with the Secretary of HHS. Based on this autho- rization, the HHS MEC regulations pro- vide guidance addressing which hardship exemptions must be acquired through an Exchange and which may be claimed di- rectly on a Federal income tax return. 3. Required Contribution a. In general A commentator recommended that in- dividuals who are eligible for unaffordable coverage under an eligible employer-spon- sored plan qualify for the lack of affordable coverage exemption only if coverage pur- chased through an Exchange would also be unaffordable. The commentator noted that those individuals might find afford- able coverage under plans in the individ- ual market and that, if so, they should be encouraged to enroll in them. Section September 23, 20132482013–39 I.R.B. 5000A(e)(1)(B) defines the required con- tribution for two discrete groups based on whether an individual is eligible for cov- erage under eligible employer-sponsored plans. An individual cannot be described in both groups. Thus, section 5000A does not require an individual to test the afford- ability of coverage under both an eligible employer-sponsored plan and a plan in the individual market. Accordingly, the final regulations do not adopt this suggestion. b. Required contribution for individuals eligible for coverage under eligible employer-sponsored plans The proposed regulations under sec- tion 36B published on May 3, 2013 (78 FR 25909) (the proposed minimum value regulations) provide that amounts newly made available for the current plan year under a health reimbursement arrangement (HRA) that is integrated with an eligible employer-sponsored plan are counted to- ward the employee’s required contribution in determining the affordability of the cov- erage if the employee may use the amounts only for premiums or may choose to use the amounts for either premiums or cost sharing. The preamble to the proposed minimum value regulations states that reg- ulations under section 5000A will provide a similar rule for determining the effect of amounts newly made available under an HRA for each plan year on the determina- tion of affordability of minimum essential coverage. It is anticipated that future guid- ance under section 5000A will address the treatment of employer contributions to HRAs in determining the required con- tribution in a manner consistent with the treatment of these contributions in final rulemaking under section 36B. The proposed regulations provide that a former employee eligible to enroll in con- tinuation coverage is eligible for coverage under an eligible employer-sponsored plan only if the former employee enrolls in it. In addition to extending this rule to re- tiree coverage, the final regulations clar- ify that an individual eligible for continu- ation or retiree coverage because of a re- lationship to a former employee is treated in the same manner as the former em- ployee. Therefore, individuals eligible for continuation or retiree coverage who do not enroll in it, and who are not eligible for coverage under another eligible em- ployer-sponsored plan, determine qualifi- cation for the lack of affordable coverage exemption under the rules that apply to in- dividuals ineligible for coverage for eligi- ble employer-sponsored plans. c. Required contribution for individuals ineligible for coverage under eligible employer-sponsored plans To determine the required contribution for individuals who are ineligible for cov- erage under eligible employer-sponsored plans, the proposed regulations provide that the required contribution is the pre- mium for the applicable plan reduced by the amount of the credit allowable under section 36B. The proposed regulations further provide that, in general, the ap- plicable plan is the lowest cost bronze plan available in the Exchange serving the rating area where the individual resides that would cover all members of the in- dividual’s nonexempt family taking into account the rating factors (for example, an individual’s age) that an Exchange would use to determine the cost of coverage. The proposed regulations allow taxpayers to make an irrevocable election to use a sim- plified method to determine the premium for the applicable plan. One commentator requested that the election to use the simplified method to determine the premium for the applicable plan, when a plan is not offered that covers members of the entire tax household, be revocable. The Treasury Department and the IRS are considering the comment, as well as alternative simplified methods of identifying the premium for the applicable plan. Accordingly, the final regulations remove the simplified method rule that was included in the proposed regulations and reserve on providing simplified meth- ods for identifying the premium for the applicable plan. A commentator asked that characteris- tics of individuals in a taxpayer’s nonex- empt family taken into account in identi- fying the applicableplan expressly include tobacco use. The rule is intended to reflect as accurately as possible a taxpayer’s ac- tual premium amount.Therefore, the final regulations clarify that the characteristics used to identify the applicable plan include tobacco use. It is anticipated that future HHS guid- ance will specify that when determining eligibility for the hardship exemption for individuals who lackaffordable coverage based on projected income described in 45 CFR 155.605(g)(2), the Exchange will cal- culate advance payments of the premium tax credit using the rules specified in the regulations under section 36B, providing that individuals who have minimum essen- tial coverage are excluded from the com- putation of the applicable benchmark plan. This treatment will ensure that Exchanges can reuse existing advance payment func- tionality instead of having to develop ad- ditional functionality for the sole purpose of supporting this exemption. d. Wellness program incentives The proposed regulations do not ad- dress wellness program incentives. Com- mentators recommended determining an individual’s required contribution without regard to any wellness program incentives that, if received, would lower premiums. A commentator asked that premiums for the applicable plan for an individual resid- ing in a rating area in a state participating in the Individual Market Wellness Pro- gram Demonstration Project described in section 2705(l) of the Public Health Ser- vice Act (42 U.S.C. 300gg–4(l)) disregard any premium-based wellness incentive re- quirements, including incentives relating to tobacco use. The proposed minimum value regulations disregard wellness pro- gram incentives, except those related to tobacco use, in determining an em- ployee’s required contribution under sec- tion 36B(c)(2)(C)(i). It is anticipated that future guidance under section 5000A will address the treatment of wellness program incentives in determining the required contribution in a manner consistent with the treatment of theseincentives in final rulemaking under section 36B. F.Household income below the return filing threshold The proposed regulations exempt an in- dividual for a month in a calendar year if the individual’s household income for the taxable year is less than the applica- ble filing threshold. The proposed regula- tions provide that this below filing thresh- old exemption may be claimed on an in- come tax return. Under the proposed reg- ulations an individual is not required to 2013–39 I.R.B.249September 23, 2013 file an income tax return to claim this ex- emption. One commentator requested that a taxpayer with household income below the applicable filing threshold who files a return remain eligible for this exemption. The final regulations retain the rule that an individual is not required to file a Federal income tax return to claim this exemption and clarify that a taxpayer with household income below the applicable filing thresh- old who files a Federal income tax return may claim the exemption on the filed re- turn. The same commentator inquired whether the filing threshold rule for depen- dents in §1.5000A–3(f)(2)(ii) of the pro- posed regulations affects the definition of household income in §1.5000A–1(d)(7). Under §1.5000A–3(f)(2)(ii) a dependent’s applicable filing threshold is the same as the threshold for the taxpayer claim- ing the dependent. Section 5000A(e)(2) allows an exemption for an individual whose household income is less than the amount of gross income specified in section 6012(a)(1)with respect to the taxpayer. The taxpayer referred to in sec- tion 5000A(e)(2) is the taxpayer claiming the dependent. Accordingly, a dependent claimed for an exemption deduction uses the family’s household income and the taxpayer’s applicable filing threshold in determining eligibility for the below filing threshold exemption. This treatment has no effect on the household income defini- tion. G.Members of Indian tribes The proposed regulations provide an exemption for individuals who are mem- bers of federally-recognized Indian tribes. Many commentators were concerned that this exemption was overly restrictive and recommended that the final regulations broaden the exemption to include all indi- viduals who are eligible to receive services through the Indian Health Service, a tribe or tribal organization clinic, or an urban Indian organization (collectively referred to as I/T/U services). Alternatively, com- mentators asked that coverage under I/T/U services be recognized as minimum es- sential coverage solely for section 5000A or that these individuals be eligible for a hardship exemption from Exchanges. The final regulations do not define coverage under I/T/U services as mini- mum essential coverage because section 5000A does not specifically identify I/T/U services as minimum essential coverage. However, following consultation among HHS, tribal groups, and the Treasury De- partment and the IRS, the HHS MEC regulations provide a hardship exemption for an individual who is not a member of a federally-recognized Indian tribe, but who is eligible for services through an Indian health care provider, as defined in 42 CFR 447.50, or is eligible for services through Indian Health Service in accordance with 25 U.S.C. 1680c(a), (b), or (d)(3). See 45 CFR 155.605(g)(6). Several commentators also requested that individuals be allowed to claim the hardship exemption for those eligible for I/T/U services on their income tax returns. The final regulations do not adopt this suggestion because section 5000A(e)(5) provides HHS, through Exchanges, with the authority to grant hardship exemptions not delegated to the IRS. H.Short coverage gap The proposed regulations provide that an individual qualifies for the short cov- erage gap exemption if the continuous pe- riod without minimum essential coverage is less than three full calendar months and is the first short coverage gap in the in- dividual’s taxable year. Further, in deter- mining whether a gap in coverage quali- fies as a short coverage gap, the length of the period without minimum essential cov- erage is measured by reference to calen- dar months (for example, January or Feb- ruary) in conjunction with the one day rule in §1.5000A–1(b). Therefore, if an indi- vidual is enrolled in and entitled to receive benefits under a plan identified as mini- mum essential coverage for one day in a calendar month, the month is not included in the continuous period when applying the short coverage gap exemption. Some commentators recommended making the short coverage gap exemption available to cover an aggregate period of coverage of less than three months, regardless of whether the period was con- tinuous. The commentators noted that those who switched jobs frequently might have numerous short gaps in coverage throughout the year. The commenta- tors’ recommendation is inconsistent with section 5000A(e)(4)(B)(iii), which lim- its the short coverage gap exemption to one continuous period of less than three months. Accordingly, the final regulations do not adopt this suggestion. However, if a taxpayer has multiple short coverage gaps due to extended waiting periods after switching employment or because of other circumstances that prevent the taxpayer from obtaining coverage, the taxpayer maybeeligibleforahardshiporother exemption available through an Exchange. See 45 CFR 155.605. Section 5000A(e)(4)(B)(i) provides that, in general, the length of a continuous period without coverage is determined without regard to the calendar years in which the period occurs. However, section 5000A(e)(4) expressly authorizes the Sec- retary of the Treasury to prescribe rules for the collection of the shared responsibility payment in cases in which a continuous period includes months in more than one taxable year. The proposed regulations provide rules for a coverage gap that strad- dles two taxable years. For the earlier taxable year, the coverage gap terminates at the end of the earlier taxable year. For the later taxable year, the coverage gap continues from the earlier taxable year and terminates when the individual no longer lacks minimum essential coverage. Thus, a taxpayer who lacked minimum essential coverage in November and December of one year and January and February of the following year has a coverage gap of two months in the earlier taxable year and four months in the later taxable year. Some commentators stated that the cov- erage gap in the earlier year should include months in the later year in which an in- dividual has no minimum essential cover- age. Other commentators recommended that all continuous periods in a year begin no earlier than January 1, thereby ignoring any gaps in coverage in the preceding year. The final regulations adopt neither sugges- tion. To assist taxpayers in timely filing re- turns and in the interests of efficient tax ad- ministration, the final regulations provide that a continuous period terminates no later than the last day of a taxable year. In addi- tion, for the later year when the same ad- ministrative concerns do not apply, consis- tent with section 5000A(e)(4)(B)(i), the fi- nal regulations provide that a continuous period may include months in an earlier year. September 23, 20132502013–39 I.R.B. Under the proposed regulations an in- dividual has minimum essential coverage for a month in which the individual is oth- erwise exempt fromsection 5000A for the short coverage gap exemption. One com- mentator asked whether gaps in coverage in 2013 affect the measurement of gaps in coverage beginning in January 2014. Sec- tion 5000A is effective for months begin- ning on or after January 1, 2014. Accord- ingly, the final regulations provide that gaps in coverage prior to January 1, 2014, are not taken into account when measuring the length of a coverage gap in 2014. A commentator requested that any pro- bationary period during which an individ- ual is enrolled in minimum essential cov- erage but not yet entitled to benefits under the plan not be taken into account in deter- mining the length of a continuous period for the short coverage gap exemption. As discussed in this preamble with regard to a similar comment concerning a taxpayer who submitted an application for Medic- aid but is awaiting approval for enroll- ment, section 5000A(a) requires that an in- dividual have minimum essential coverage for the month. Unless retroactive cover- age is provided, an applicant awaiting ap- proval for enrollment is not covered until approval of the application. Therefore, the final regulations do not adopt this recom- mendation. However, an individual who is unable to obtain coverage in a timely man- ner because of a lengthy approval process may be otherwise eligible for a hardship or other exemption through an Exchange. See 45 CFR 155.605. I.Additional hardship exemptions A number of commentators proposed that the IRS adopt additional hardship exemptions to address specific situations. Authority to define circumstances giving rise to a hardship exemption, as well as authority to grant hardship exemptions in individual cases, resides with HHS. HHS has provided guidance on the hardship exemption in the HHS MEC regulations. Section 155.605(g)(3) of the HHS MEC regulations provides that the IRS may al- low a taxpayer to claim a hardship exemp- tion for a calendar year if the taxpayer was notrequiredtofileanincometaxreturnbe- cause the taxpayer’s gross income was be- low the applicable return filing threshold but nevertheless filed a return, claimed a dependent with a return filing requirement and, as a result, had household income that exceeds the applicablefiling threshold. Section 155.605(g)(5) of the HHS MEC regulations provides that the IRS may al- low a taxpayer to claim a hardship exemp- tion for employed family members who are eligible for affordable employer-spon- sored self-only coverage, but for whom the aggregate cost of employer-sponsored coverage for all employed members of the family is unaffordable. The information required to determine eligibility for these hardship exemptions is available only at the time of tax filing. Accordingly, the final regulations provide that eligible taxpayers may claim these two hardship exemptions on a Federal income tax return. J.Claiming exemptions from the shared responsibility payment Section 1.5000A–3(k) of the proposed regulations addresses which exemptions may be certified by an Exchange or claimed on a return, and how to claim exemptions. The HHS MEC regulations address how to request certification for an exemption from an Exchange. The man- ner for claiming an exemption on a return is more appropriately addressed through IRS forms, instructions, or other publica- tions. Therefore, the final regulations do not provide information on how to claim an exemption on a Federal income tax return. IV.Accuracy-Related Penalties One commentator expressed concern that taxpayers would have difficulty accu- rately calculating the shared responsibility payment. Emphasizing the complex- ity of the calculation, the commentator requested that the IRS not impose accu- racy-related penalties under section 6662 for underpayments caused by erroneous section 5000A computations. Section 6662 does not apply to a sec- tion 5000A shared responsibility payment. The accuracy-related penalty of section 6662(a) applies only to underpayments of tax, defined in section 6664. The sec- tion 5000A shared responsibility payment is not taken into consideration in deter- mining whether there is an underpayment of tax under section 6664. Therefore, the shared responsibility payment is not taken into account under section 6662. Forms, instructions, publications, or other guidance to be published by the IRS are anticipated to assist taxpayers in deter- mining the amount of an applicable shared responsibility payment. V.Effective/Applicability Date These final regulations apply to taxable years ending after December 31, 2013. Special Analyses It has been determined that this Trea- sury decision is not asignificant regula- tory action as defined in Executive Order 12866, as supplemented by Executive Or- der 13563. Therefore, a regulatory assess- ment is not required. Section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regu- lations, and, because the regulations do not impose a collection of information re- quirement on small entities, the Regula- tory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rule- making that preceded these final regula- tions was submitted to the Chief Counsel for Advocacy of the Small Business Ad- ministration for comment on its impact on small business, and no comments were re- ceived. Drafting Information The principal authors of these fi- nal regulations are Sue-Jean Kim and John B. Lovelace of the Office of Associate Chief Counsel (Income Tax and Accounting). Other personnel from the IRS and the Treasury Department participated in their development. ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR parts 1 and 602 are amended to read as follows: 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 1.5000A–4 also issued under 26 U.S.C. 5000A(e)(4). 2013–39 I.R.B.251September 23, 2013 Par 2. Sections 1.5000A–0 through 1.5000A–5 are added to read as follows: §1.5000A–0 Table of Contents. This section lists the captions contained in §§1.5000A–1 through 1.5000A–5. §1.5000A–1 Maintenance of minimum essential coverage and liability for the shared responsibility payment. (a) In general. (b) Coverage under minimum essential coverage. (1) In general. (2) Special rule for United States cit- izens or residents residing outside the United States or residents of territories. (c) Liability for shared responsibility payment. (1) In general. (2) Liability for dependents. (i) In general. (ii) Special rules for dependents adopted or placed in foster care during the taxable year. (A) Taxpayers adopting an individual. (B) Taxpayers placingan individual for adoption. (C) Examples. (3) Liability of individuals filing a joint return. (d) Definitions. (1) Affordable Care Act. (2) Employee. (3) Exchange. (4) Family. (5) Family coverage. (6) Group health insurance coverage. (7) Group health plan. (8) Health insurance coverage. (9) Health insurance issuer. (10) Household income. (i) In general. (ii) Modified adjusted gross income. (11) Individual market. (12) Large and small group market. (13) Month. (14) Qualified health plan. (15) Rating area. (16) Self-only coverage. (17) Shared responsibility family. (18) State. §1.5000A–2 Minimum essential coverage. (a) In general. (b) Government-sponsored program. (1) In general. (i) Medicare. (ii) Medicaid. (iii) Children’s Health Insurance Pro- gram. (iv) TRICARE. (v) Veterans programs. (vi) Peace Corp program. (vii) Nonappropriated Fund Health Benefits Program. (2) Government-sponsored program special rules. (i) Coverage authorized under Section 1115 of the Social Security Act. (ii) Medicaid for the medically needy programs. (iii) Limited benefits TRICARE pro- grams. (c) Eligible employer-sponsored plan. (1) In general. (2) Government-sponsored program generally not an eligible employer-spon- sored plan. (d) Plan in the individual market. (1) In general. (2) Qualified health plan offered by an Exchange. (e) Grandfathered health plan. (f) Other coverage that qualifies as min- imum essential coverage. (g) Excepted benefits not minimum es- sential coverage. §1.5000A–3 Exempt individuals. (a) Members of recognized religious sects. (1) In general. (2) Exemption certification. (b) Member of health care sharing min- istries. (1) In general. (2) Health care sharing ministry. (c) Exempt noncitizens. (1) In general. (2) Exempt noncitizens. (d) Incarcerated individuals. (1) In general. (2) Incarcerated. (e) Individuals with no affordable cov- erage. (1) In general. (2) Required contribution percentage. (i) In general. (ii) Indexing. (iii) Plan year. (3) Individuals eligible for coverage un- der eligible employer-sponsored plans. (i) Eligibility. (A) In general. (B) Multiple eligibility. (C) Special rule for post-employment coverage. (ii) Required contribution for individu- als eligible for coverage under an eligible employer-sponsored plan. (A) Employees. (B) Individuals related to employees. (C) Required contribution for part-year period. (D) Employer contributions to health reimbursement arrangements. (E) Wellness program incentives. (iii) Examples. (4) Individuals ineligible for coverage under eligible employer-sponsored plans. (i) Eligibility for coverage other than an eligible employer-sponsored plan. (ii) Required contribution for individu- als ineligible for coverage under eligible employer-sponsored plans. (A) In general. (B) Applicable plan. (1) In general. (2) Lowest cost bronze plan does not cover all individuals included in the tax- payer’s nonexempt family. (i) In general. (ii) Optional simplified method for ap- plicable plan identification. (C) Credit allowable under section 36B. (D) Required contribution for part-year period. (iii) Examples. (f) Household income below filing threshold. (1) In general. (2) Applicable filing threshold. (i) In general. (ii) Certain dependents. (3) Manner of claiming the exemption. (g) Members of Indian tribes. (h) Individuals with hardship exemp- tion certification. (1) In general. (2) Hardship exemption certification. (3) Hardship exemptions that may be claimed on a return. (i) [Reserved] (j) Individuals with certain short cover- age gaps. (1) In general. (2) Short coverage gap. (i) In general. (ii) Coordinationwith other exemp- tions. September 23, 20132522013–39 I.R.B. (iii) More than one short coverage gap during calendar year. (3) Continuous period. (i) In general. (ii) Continuous period straddling more than one taxable year. (4) Examples. §1.5000A–4 Computation of shared responsibility payment. (a) In general. (b) Monthly penalty amount. (1) In general. (2) Flat dollar amount. (i) In general. (ii) Applicable dollar amount. (iii) Special applicable dollar amount for individuals under age 18. (iv) Indexing of applicable dollar amount. (3) Excess income amount. (i) In general. (ii) Income percentage. (c) Monthly national average bronze plan premium. (d) Examples. §1.5000A–5 Administration and procedure. (a) In general. (b) Special rules. (1) Waiver of criminal penalties. (2) Limitations on liens and levies. (3) Authority to offset against overpay- ment. (c) Effective/applicability date. §1.5000A–1 Maintenance of minimum essential coverage and liability for the shared responsibility payment. (a)In general. For each month during the taxable year, a nonexempt individual must have minimum essential coverage or pay the shared responsibility payment. For a month, a nonexempt individual is an in- dividual in existence for the entire month who is not an exempt individual described in §1.5000A–3. (b)Coverage under minimum essential coverage—(1)In general. An individ- ual has minimum essential coverage for a month in which the individual is enrolled in and entitled to receive benefits under a program or plan identified as minimum es- sential coverage in §1.5000A–2 for at least onedayinthemonth. (2)Special rule for United States cit- izens or residents residing outside the United States or residents of territories. An individual is treated as having mini- mum essential coverage for a month— (i) If the month occurs during any pe- riod described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual; or (ii) If, for the month, the individual is a bona fide resident of a possession of the United States (as determined under section 937(a)). (c)Liability for shared responsibility payment—(1)In general. A taxpayer is li- able for the shared responsibility payment for a month for which— (i) The taxpayer is a nonexempt individ- ual without minimum essential coverage; or (ii) A nonexempt individual for whom the taxpayer is liable under paragraph (c)(2) or (c)(3) of this section does not have minimum essential coverage. (2)Liability for dependents—(i)In gen- eral. For a month when a nonexempt in- dividual does not have minimum essen- tial coverage, if the nonexempt individual is a dependent (as defined in section 152) of another individual for the other individ- ual’s taxable year including that month, the other individual is liable for the shared re- sponsibility payment attributable to the de- pendent’s lack of coverage. An individual is a dependent of a taxpayer for a taxable year if the individual satisfies the defini- tion of dependent under section 152, re- gardless of whether the taxpayer claims the individual as a dependent on a Federal in- come tax return for the taxable year. If an individual may be claimed as a depen- dent by more than one taxpayer in the same calendar year, the taxpayer who properly claims the individual as a dependent for the taxable year is liable for the shared respon- sibility payment attributable to the individ- ual. If more than one taxpayer may claim an individual as a dependent in the same calendar year but no one claims the indi- vidual as a dependent, the taxpayer with priority under the rules of section 152 to claim the individual as a dependent is li- able for the shared responsibility payment for the individual. (ii)Special rules for dependents adopted or placed in foster care during the taxable year—(A)Taxpayers adopting an individual. If a taxpayer adopts a nonex- empt dependent (or accepts a nonexempt dependent who is an eligible foster child as defined in section 152(f)(1)(C)) during the taxable year and is otherwise liable for the nonexempt dependent under para- graph (c)(2)(i) of this section, the taxpayer is liable under paragraph (c)(2)(i) of this section for the nonexempt dependent only for the full months in the taxable year that follow the month in which the adoption or acceptance occurs. (B)Taxpayers placing an individual for adoption. If a taxpayer who is otherwise liable for a nonexempt dependent under paragraph (c)(2)(i) of this section places (or, by operation of law, must place) the nonexempt dependent for adoption or fos- ter care during the taxable year, the tax- payer is liable under paragraph (c)(2)(i) of this section for the nonexempt dependent only for the full months in the taxable year that precede the month in which the adop- tion or foster care placement occurs. (C)Examples. The following examples illustrate the provisions of this paragraph (c)(2)(ii). In each example the taxpayer’s taxable year is a calendar year. Example 1.Taxpayers adopting a child.(i)E and F, married individuals filing a joint return, initi- ate proceedings for the legal adoption of a 2-year old child, G, in January 2016. On May 15, 2016, G be- comes the adopted child (within the meaning of sec- tion 152(f)(1)(B)) of E and F, and resides with them for the remainder of 2016. Prior to the adoption, G resides with H, an unmarried individual, with H pro- viding all of G’s support. For 2016 G meets all re- quirements under section 152 to be E and F’s depen- dent, and not H’s dependent. (ii) Under paragraph (c)(2) of this section, E and F are not liable for a shared responsibility payment attributable to G for January through May of 2016, but are liable for a shared responsibility payment at- tributable to G, if any, for June through December of 2016. H is not liable for a shared responsibility pay- ment attributable to G for any month in 2016, because G is not H’s dependent for 2016 under section 152. Example 2.Taxpayers placing a child for adop- tion .(i)ThefactsarethesameasExample 1, except the legal adoption occurs on August 15, 2016, and, for 2016, G meets all requirements under section 152 to be H’s dependent, and not E and F’s dependent. (ii) Under paragraph (c)(2) of this section, H is li- able for a shared responsibility payment attributable to G, if any, for January through July of 2016, but is not liable for a shared responsibility payment attrib- utable to G for August through December of 2016. E and F are not liable for a shared responsibility pay- ment attributable to G for any month in 2016, because G is not E and F’s dependent for 2016 under section 152. (3)Liability of individuals filing a joint return. Married individuals (within the meaning of section 7703) who file a joint 2013–39 I.R.B.253September 23, 2013 return for a taxable year are jointly liable for any shared responsibility payment for a month included in the taxable year. (d)Definitions. The definitions in this paragraph (d) apply to this section and §§1.5000A–2 through 1.5000A–5. (1)Affordable Care Act.Affordable Care Actrefers to the Patient Protection and Affordable Care Act, Public Law 111–148 (124 Stat. 119 (2010)), and the Health Care and Education Reconciliation Act of 2010, Public Law 111–152 (124 Stat. 1029 (2010)), as amended. (2)Employee.Employeeincludes for- mer employees. (3)Exchange.Exchangehas the same meaningasin45CFR155.20. (4)Family. A taxpayer’s family means the individuals for whom the taxpayer properly claims a deduction for a personal exemption under section 151 for the tax- able year. (5)Family coverage.Family coverage means health insurance that covers more than one individual. (6)Group health insurance coverage. Group health insurance coveragehas the same meaning as in section 2791(b) of the Public Health Service Act (42 U.S.C. 300gg–91(b)(4)). (7)Group health plan.Group health planhas the same meaning as in section 2791(a) of the Public Health Service Act (42 U.S.C. 300gg–91(a)(1)). (8)Health insurance coverage.Health insurance coveragehas the same mean- ing as in section 2791(b)(1) of the Public Health Service Act (42 U.S.C. 300gg–91(b)(1)). (9)Health insurance issuer.Health in- surance issuerhas the same meaning as in section 2791(b)(2) of the Public Health Service Act (42 U.S.C. 300gg–91(b)(2)). (10)Household income—(i)In general. Household incomemeans the sum of— (A) A taxpayer’s modified adjusted gross income; and (B) The aggregate modified adjusted gross income of all other individuals who— (1) Are included in the taxpayer’s fam- ily under paragraph (d)(4) of this section; and (2) Are required to file a Federal income tax return for the taxable year. (ii)Modified adjusted gross income. Modified adjusted gross incomemeans ad- justed gross income (within the meaning of section 62) increased by— (A) Amounts excluded from gross in- come under section 911; and (B) Tax-exempt interest the taxpayer re- ceives or accrues during the taxable year. (11)Individual market.Individual mar- kethas the same meaning as in section 1304(a)(2) of the Affordable Care Act (42 U.S.C. 18024(a)(2)). (12) Large and small group market. Large group marketandsmall group mar- kethave the same meanings as in section 1304(a)(3) of the Affordable Care Act (42 U.S.C. 18024(a)(3)). (13)Month.Monthmeans calendar month. (14)Qualified health plan.Qualified health planhas the same meaning as in section 1301(a) of the Affordable Care Act (42 U.S.C. 18021(a)). (15)Rating area.Rating areahas the same meaning as in §1.36B–1(n). (16)Self-only coverage.Self-only cov- eragemeans health insurance that covers one individual. (17)Shared responsibility family. Shared responsibility familymeans, for a month, all nonexempt individuals for whom the taxpayer (and the taxpayer’s spouse, if the taxpayer is married and files a joint return with the spouse) is liable for the shared responsibility payment under paragraph (c) of this section. (18)State.Statemeans each of the 50 states and the District of Columbia. §1.5000A–2 Minimum essential coverage. (a)In general.Minimum essential coveragemeans coverage under a gov- ernment-sponsored program (described in paragraph (b) of this section), an eligible employer-sponsored plan (described in paragraph (c) of this section), a plan in the individual market (described in paragraph (d) of this section), agrandfathered health plan (described in paragraph (e) of this section), or other health benefits coverage (described in paragraph (f) of this section). Minimum essential coverage does not include coverage described in paragraph (g) of this section. All terms defined in this section apply for purposes of this sec- tion and §1.5000A–1 and §§1.5000A–3 through 1.5000A–5. (b)Government-sponsored pro- gram—(1)In general. Except as provided in paragraph (2),government-sponsored programmeans any of the following: (i)Medicare. The Medicare program under part A of Title XVIII of the Social Security Act (42 U.S.C.1395c and follow- ing sections); (ii)Medicaid. The Medicaid program under Title XIX of the Social Security Act (42 U.S.C. 1396 and following sections), other than— (A) Optional coverage of fam- ily planning services under sec- tion1902(a)(10)(A)(ii)(XXI)of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XXI)); (B) Optional coverage of tu- berculosis-relatedservicesunder section 1902(a)(10)(A)(ii)(XII) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XII)); (C)Coverageofpreg- nancy-related services under sec- tion1902(a)(10)(A)(i)(IV)and (a)(10)(A)(ii)(IX) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(i)(IV), (a)(10)(A)(ii)(IX)); or (D) Coverage limited to treatment of emergency medical conditions in accor- dance with 8 U.S.C. 1611(b)(1)(A), as au- thorized by section 1903(v) of the Social Security Act (42 U.S.C. 1396b(v)). (iii)Children’s Health Insurance Pro- gram. The Children’s Health Insurance Program (CHIP) under Title XXI of the Social Security Act (42 U.S.C 1397aa and following sections); (iv)TRICARE. Medical coverage under chapter 55 of Title 10, U.S.C., including coverage under the TRICARE program. (v)Veterans programs. The following health care programs under chapter 17 or 18 of Title 38, U.S.C.: (A) The medical benefits package au- thorized for eligible veterans under 38 U.S.C. 1710 and 38 U.S.C. 1705; (B) The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) authorized under 38 U.S.C. 1781; and (C) The comprehensive health care pro- gram authorized under 38 U.S.C. 1803 and 38 U.S.C. 1821 for certain children of Viet- nam Veterans and Veterans of covered ser- vice in Korea who are suffering from spina bifida. (vi)Peace Corp program. A health plan under section 2504(e) of Title 22, U.S.C. (relating to Peace Corps volunteers); and September 23, 20132542013–39 I.R.B. (vii)Nonappropriated Fund Health Benefits Program. The Nonappropriated Fund Health Benefits Program of the Department of Defense, established un- der section 349 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law No. 103–337; 10 U.S.C. 1587 note). (2)Government-sponsored program special rules—(i)Coverage authorized under Section 1115 of the Social Security Act. [Reserved] (ii)Medicaid for the medically needy programs. [Reserved] (iii)Limited benefits TRICARE pro- grams. [Reserved] (c)Eligible employer-sponsored plan—(1)In general.Eligible em- ployer-sponsored planmeans, with respect to any employee: (i) Group health insurance coverage of- fered by, or on behalf of, an employer to the employee that is— (A) A governmental plan (within the meaning of section 2791(d)(8) of the Public Health Service Act (42 U.S.C.300gg–91(d)(8))); (B) Any other plan or coverage offered in the small or large group market within a State; (C) A grandfathered health plan (within the meaning of paragraph (e) of this sec- tion) offered in a group market; or (ii) A self-insured group health plan un- der which coverage is offered by, or on be- half of, an employer to the employee. (2)Government-sponsored program generally not an eligible employer-spon- sored plan. Except for the program iden- tified in paragraph (b)(7) of this section, a government-sponsored program described in paragraph (b) of this section is not an eligible employer-sponsored plan. (d)Plan in the individual market—(1) In general.Plan in the individual market means health insurance coverage offered to individuals in the individual market within a state, other than short-term lim- ited duration insurance within the meaning of section 2791(b)(5) of the Public Health Service Act (42 U.S.C. 300gg–91(b)(5)). (2)Qualified health plan offered by an Exchange. A qualified health plan offered by an Exchange is a plan in the individual market. If a territory of the United States elects to establish an Exchange under sec- tion 1323(a) and (b) of the Affordable Care Act (42 U.S.C. 18043(a)(1), (b)), a quali- fied health plan offered by that Exchange is a plan in the individual market. (e)Grandfathered health plan.Grand- fathered health planmeans any group health plan or group health insurance coverage to which section 1251 of the Affordable Care Act (42 U.S.C. 18011) applies. (f)Other coverage that qualifies as min- imum essential coverage. Minimum es- sential coverage includes any plan or ar- rangement recognized by the Secretary of Health and Human Services, in coordina- tion with the Secretary of the Treasury, as minimum essential coverage. (g)Excepted benefits not minimum essential coverage. Minimum essential coverage does not include any health in- surance coverage that consists solely of excepted benefits described in section 2791(c)(1), (c)(2), (c)(3), or (c)(4) of the Public Health Service Act (42 U.S.C. §300gg–91(c)). §1.5000A–3 Exempt individuals. (a)Members of recognized religious sects—(1)In general. An individual is an exempt individual for a month that in- cludes a day on which the individual has in effect a religiousconscienceexemption certification describedin paragraph (a)(2) of this section. (2)Exemption certification. A religious conscience exemptioncertification is is- sued by an Exchange in accordance with the requirements of section 1311(d)(4)(H) oftheAffordableCareAct(42U.S.C. 18031(d)(4)(H)), 45 CFR 155.605(c), and 45 CFR 155.615(b) and certifies that an individual is— (i) A member of a recognized religious sect or division of the sect that is described in section 1402(g)(1); and (ii) An adherent of established tenets or teachings of the sector division as de- scribed in that section. (b)Member of health care sharing min- istries—(1)In general. An individual is an exempt individual for a month that in- cludes a day on which the individual is a member of a health care sharing ministry. (2)Health care sharing ministry.For purposes of this section,health care shar- ing ministrymeans an organization— (i) That is described in section 501(c)(3) and is exempt from tax under section 501(a); (ii) Members of which share a common set of ethical or religious beliefs and share medical expenses among themselves in ac- cordance with those beliefs and without re- gard to the state in which a member resides or is employed; (iii) Members of which retain member- ship even after they develop a medical con- dition; (iv) That (or a predecessor of which) has been in existence at all times since De- cember 31, 1999; (v) Members of which have shared medical expenses continuously and with- out interruption since at least December 31, 1999; and (vi) That conducts an annual audit per- formed by an independent certified public accounting firm in accordance with gen- erally accepted accounting principles and makes the annual audit report available to the public upon request. (c)Exempt noncitizens—(1)In general. An individual is an exempt individual for a month that the individual is an exempt noncitizen. (2)Exempt noncitizens. For purposes of this section, an individual is an exempt noncitizen for a month if the individual— (i) Is not a U.S. citizen or U.S. national for any day during the month; and (ii) Is either— (A) A nonresident alien (within the meaning of section 7701(b)(1)(B)) for the taxable year that includes the month; or (B) An individual who is not lawfully present (within the meaning of 45 CFR 155.20) on any day in the month. (d)Incarcerated individuals—(1)In general. An individual is an exempt indi- vidual for a month that includes a day on which the individual is incarcerated. (2)Incarcerated. For purposes of this section, the termincarceratedmeans con- fined, after the disposition of charges, in a jail, prison, or similar penal institution or correctional facility. (e)Individuals with no affordable cov- erage—(1)In general. An individual is an exempt individual for a month in which the individual lacks affordable coverage. For purposes of this paragraph (e), an individ- ual lacks affordable coverage in a month if the individual’s required contribution (de- termined on an annual basis) for mini- mum essential coverage for the month ex- ceeds the required contribution percentage (as defined in paragraph (e)(2) of this sec- 2013–39 I.R.B.255September 23, 2013 tion) of the individual’s household income. For purposes of this paragraph (e), an in- dividual’s household income is increased by any amount of the required contribution made through a salary reduction arrange- ment that is excluded from gross income. (2)Required contribution percent- age—(i)In general. Except as provided in paragraph (e)(2)(ii) of this section, the required contribution percentage is 8 per- cent. (ii)Indexing. For plan years beginning in any calendar year after 2014, the re- quired contribution percentage is the per- centage determined bythe Department of Health and Human Services that reflects the excess of the rate of premium growth between the preceding calendar year and 2013 over the rate of income growth for the period. (iii)Plan year. For purposes of this paragraph (e),plan yearmeans the eli- gible employer-sponsored plan’s regular 12-month coverage period, or for a new employee or an individual who enrolls dur- ing a special enrollment period, the re- mainder of a 12-month coverage period. (3)Individuals eligible for cover- age under eligible employer-sponsored plans—(i)Eligibility—(A)In general.Ex- cept as provided in paragraph (e)(3)(i)(B) of this section, an employee or re- lated individual (as defined in paragraph (e)(3)(ii)(B) of this section) is treated as eligible for coverage under an eligible employer-sponsored plan for a month dur- ing a plan year if the employee or related individual could have enrolled in the plan for any day in that month during an open or special enrollment period, regardless of whether the employee or related individual is eligible for any other type of minimum essential coverage. (B)Multiple eligibility. For purposes of this paragraph (e)(3), an employee el- igible for coverage under an eligible em- ployer-sponsored plan offered by the em- ployee’s employer is not treated as eligible as a related individual for coverage under an eligible employer-sponsored plan (for example, an eligible employer-sponsored plan offered by the employer of the em- ployee’s spouse) for any month included in the plan year of the eligible employer- sponsored plan offered by the employee’s employer. (C)Special rule for post-employment coverage. A former employee or an indi- vidual related to a former employee, who may enroll in continuation coverage re- quired under Federal law or a state law that provides comparable continuation cover- age, or in retiree coverage under an eligible employer-sponsored plan, is eligible for coverage under an eligible employer-spon- sored plan only if the individual enrolls in the coverage. (ii)Required contribution for individu- als eligible for coverage under an eligible employer-sponsored plan—(A)Employ- ees. In the case of an employee who is eligible to purchase coverage under an eligible employer-sponsored plan spon- sored by the employee’s employer, the required contribution is the portion of the annual premium that the employee would pay (whether through salary reduction or otherwise) for the lowest cost self-only coverage. (B)Individuals related to employees.In the case of an individual who is eligible for coverage under an eligible employer-spon- sored plan because of a relationship to an employee and for whom a personal exemption deduction under section 151 is claimed on the employee’s Federal in- come tax return (related individual), the required contribution is the portion of the annual premium that the employee would pay (whether through salary reduction or otherwise) for the lowest cost family cov- erage that would cover the employee and all related individuals who are included in the employee’s family and are not other- wise exempt under §1.5000A–3. (C)Required contribution for part-year period. For each individual described in paragraph (e)(3)(ii)(A) or (e)(3)(ii)(B) of this section, affordability under this para- graph (e)(3) is determined separately for each employment period that is less than a full calendar year or for the portions of an employer’s plan year that fall in differ- ent taxable years of the individual. Cover- age under an eligible employer-sponsored plan is affordable for a part-year period if the annualized required contribution for self-only coverage (in the case of the em- ployee) or family coverage (in the case of a related individual) under the plan for the part-year period does not exceed the re- quired contribution percentage of the in- dividual’s household income for the tax- able year. The annualized required con- tribution is the required contribution de- termined under paragraph (e)(3)(ii)(A) or (e)(3)(ii)(B) of this section for the part- year period times a fraction, the numer- ator of which is 12 and the denomina- tor of which is the number of months in the part-year period during the individual’s taxable year. Only full calendar months are included in the computation under this paragraph (e)(3)(ii)(C). (D)Employer contributions to health reimbursement arrangements. [Reserved] (E)Wellness program incentives.[Re- served] (iii)Examples. The following examples illustrate the application of this paragraph (e)(3). Unless stated otherwise, in each example, each individual’s taxable year is a calendar year, the individual is ineligi- ble for any other exemptions described in this section for a month, the rate of pre- mium growth has not exceeded the rate of income growth since 2013, and the indi- vidual’s employer offers a single plan that uses a calendar plan year and is an eligi- ble employer-sponsored plan as described in §1.5000A–2(c). Example 1.Unmarried employee with no depen- dents . Taxpayer A is an unmarried individual with no dependents. In November 2015, A is eligible to enroll in self-only coverage under a plan offered by A’s employer for calendar year 2016. If A enrolls in the coverage, A is required to pay $5,000 of the to- tal annual premium. In 2016, A’s household income is $60,000. Under paragraph (e)(3)(ii)(A) of this sec- tion, A’s required contribution is $5,000, the portion of the annual premium A pays for self-only coverage. Under paragraph (e)(1) of this section, A lacks afford- able coverage for 2016 because A’s required contri- bution ($5,000) is greater than 8% of A’s household income ($4,800). Example 2.Married employee with dependents. Taxpayers B and C are married and file a joint return for 2016. B and C have two children, D and E. In November 2015, B is eligible to enroll in self-only coverage under a plan offered by B’s employer for calendar year 2016 at a cost of $5,000 to B. C, D, and E are eligible to enroll in family coverage under the same plan for 2016 at a cost of $20,000 to B. B, C, D, and E’s household income for 2016 is $90,000. Under paragraph (e)(3)(ii)(A) of this section, B’s required contribution is B’s share of the cost for self-only cov- erage, $5,000. Under paragraph (e)(1) of this sec- tion, B has affordable coverage for 2016 because B’s required contribution ($5,000) does not exceed 8% of B’s household income ($7,200). Under paragraph (e)(3)(ii)(B) of this section, the required contribution for C, D, and E is B’s share of the cost for family coverage, $20,000. Under paragraph (e)(1) of this section, C, D, and E lack affordable coverage for 2016 because their required contribution ($20,000) exceeds 8% of their household income ($7,200). Example 3. Plan year is a fiscal year.(i)Tax- payer F is an unmarried individual with no depen- dents. In June 2015, F is eligible to enroll in self-only coverage under a plan offered by F’s employer for September 23, 20132562013–39 I.R.B. the period July 2015 through June 2016 at a cost to F of $4,750. In June 2016, F is eligible to enroll in self-only coverage under a plan offered by F’s em- ployer for the period July 2016 through June 2017 at a cost to F of $5,000. In 2016, F’s household income is $60,000. (ii) Under paragraph (e)(3)(ii)(C) of this section, F’s annualized required contribution for the period January 2016 through June 2016 is $4,750 ($2,375 paid for premiums in 2016 x 12/6). Under paragraph (e)(1) of this section, F hasaffordable coverage for January 2016 through June 2016 because F’s annual- ized required contribution ($4,750) does not exceed 8% of F’s household income ($4,800). (iii) Under paragraph (e)(3)(ii)(C) of this section, F’s annualized required contribution for the period July 2016 to December 2016 is $5,000 ($2,500 paid for premiums in 2016 x 12/6). Under paragraph (e)(1) of this section, F lacks affordable coverage for July 2016 through December 2016 because F’s annual- ized required contribution ($5,000) exceeds 8% of F’s household income ($4,800). Example 4. Eligibility for coverage under an el- igible employer-sponsored plan and under govern- ment sponsored coverage . Taxpayer G is unmarried and has one child, H. In November 2015, H is eligi- ble to enroll in family coverage under a plan offered by G’s employer for 2016. H is also eligible to en- roll in the CHIP program for 2016. Under paragraph (e)(3)(i) of this section, H is treated as eligible for coverage under an eligible employer-sponsored plan for each month in 2016, notwithstanding that H is eli- gible to enroll in government sponsored coverage for thesameperiod. (4)Individuals ineligible for cover- age under eligible employer-sponsored plans—(i)Eligibility for coverage other than an eligible employer-sponsored plan. An individual is treated as ineligible for coverage under an eligible employer-spon- sored plan for a month that is not described in paragraph (e)(3)(i) of this section. (ii)Required contribution for individu- als ineligible for coverage under eligible employer-sponsored plans—(A)In gen- eral. In the case of an individual who is ineligible for coverage under an eligible employer-sponsored plan, the required contribution is the premium for the ap- plicable plan, reduced by the maximum amount of any credit allowable under sec- tion 36B for the taxable year, determined as if the individual was covered for the en- tire taxable year by a qualified health plan offered through the Exchange serving the rating area where the individual resides. (B)Applicable plan—(1)In gen- eral. Except as provided in paragraph (e)(4)(ii)(B)(2) of this section,applicable planmeans the single lowest cost bronze plan available in the individual market through the Exchange serving the rating area in which the individual resides (with- out regard to whether the individual pur- chased a qualified health plan through the Exchange) that would cover all individu- als in the individual’s nonexempt family. For purposes of this paragraph (e)(4), an individual’snonexempt familymeans the family (as defined in§1.5000A–1(d)(4)) that includes the individual, excluding any family members who are otherwise exempt under section1.5000A–3orare treated as eligible for coverage under an eligible employer-sponsored plan under paragraph (e)(3)(i) of this section. The premium for the applicable plan takes into account rating factors (for example, an individual’s age or tobacco use) that an Exchange would use to determine the cost of coverage. (2)Lowest cost bronze plan does not cover all individuals included in the tax- payer’s nonexempt family—(i)In general. If the Exchange serving the rating area where the individual resides does not of- fer a single bronze plan covering all indi- viduals included in the individual’s nonex- empt family, the premium for the applica- ble plan is the sum of the premiums for the lowest cost bronze plans that are offered through the Exchanges serving the rating areas where one or more of the individu- als reside that would cover in the aggre- gate all the individuals in the individual’s nonexempt family. For instance, coverage offered through the Exchange in a rating area might not cover a family member liv- ing in different rating area or a single pol- icy might not cover all the members in a taxpayer’s household. (ii)Optional simplified method for ap- plicable plan identification. [Reserved] (C)Credit allowable under section 36B. For purposes of paragraph (e)(4)(ii)(A) of this section,maximum amount of any credit allowable under section 36Bmeans the maximum amount of the credit that would be allowable to the individual, or to the taxpayer who can properly claim the individual as a dependent, under section 36B if all members of the individual’s nonexempt family enrolled in a qualified health plan through the Exchange serv- ing the rating area where the individual resides. (D)Required contribution for part-year period. For each individual described in paragraph (e)(4)(ii)(A) of this section, af- fordability under paragraph (e)(4) of this section is determined separately for each period described in paragraph (e)(4)(ii)(E) of this section that is less than a 12-month period. Coverage under a plan is afford- able for a part-year period if the annual- ized required contribution for coverage un- der the plan for the part-year period does not exceed the required contribution per- centage of the individual’s household in- come for the taxable year. The annual- ized required contribution is the required contribution determined under paragraph (e)(4)(ii)(A) of this section for the part- year period times a fraction, the numer- ator of which is 12 and the denomina- tor of which is the number of months in the part-year period during the individual’s taxable year. Only full calendar months are included in the computation under this paragraph (e)(4)(ii)(D). (iii)Examples. The following exam- ples illustrate the provisions of this para- graph (e)(4). Unless stated otherwise, in each example the taxpayer’s taxable year is a calendar year, the rate of premium growth has not exceeded the rate of in- come growth since 2013, and the taxpayer is ineligible for any of the exemptions de- scribed in paragraphs (b) through (i) of this section for a month. Example 1.Unmarried employee with no depen- dents . (i) Taxpayer G is an unmarried individual with no dependents. G is ineligible to enroll in any min- imum essential coverage other than coverage in the individual market for all months in 2016. The annual premium for the lowest cost bronze self-only plan in G’s rating area (G’s applicable plan) is $5,000. The adjusted annual premium for the second lowest cost silver self-only plan in G’s rating area (G’s applicable benchmark plan within the meaning of §1.36B–3(f)) is $5,500. In 2016 G’s household income is $40,000, which is 358% of the Federal poverty line for G’s family size for the taxable year. (ii) Under paragraph (e)(4)(ii)(C) of this section, the credit allowable under section 36B is determined pursuant to section 36B. With household income at 358% of the Federal poverty line, G’s applicable per- centage is 9.5. Because each month in 2016 is a cov- erage month (within the meaning of §1.36B–3(c)), G’s maximum credit allowable under section 36B is the excess of G’s premium for the applicable bench- mark plan over the product of G’s household income and G’s applicable percentage ($1,700). Therefore, under paragraph (e)(4)(ii)(A) of this section, G’s re- quired contribution is $3,300. Under paragraph (e)(1) of this section, G lacks affordable coverage for 2016 because G’s required contribution ($3,300) exceeds 8% of G’s household income ($3,200). Example 2.Family. (i) In 2016 Taxpayers M and N are married and file a joint return. M and N have two children, P and Q. M, N, P, and Q are ineligible to enroll in minimum essential coverage other than cov- erage in the individual market for a month in 2016. The annual premium for M, N, P, and Q’s applicable 2013–39 I.R.B.257September 23, 2013 plan is $20,000. The adjusted annual premium for M, N, P, and Q’s applicable benchmark plan (within the meaning of §1.36B–3(f)) is $25,000. M and N’s household income is $80,000, which is 347% of the Federal poverty line for a family size of 4 for the tax- able year. (ii) Under paragraph (e)(4)(ii)(C) of this section, the credit allowable under section 36B is determined pursuant to section 36B. With household income at 347% of the Federal poverty line, the applicable per- centage is 9.5. Because each month in 2016 is a cov- erage month (within the meaning of §1.36B–3(c)), the maximum credit allowable under section 36B is the excess of the premium for the applicable bench- mark plan over the product of the household income and the applicable percentage ($17,400). Therefore, under paragraph (e)(4)(ii)(A) of this section, the re- quired contribution for M, N, P, and Q is $2,600. Un- der paragraph (e)(1) of this section, M, N, P, and Q have affordable coverage for 2016 because their re- quired contribution ($2,600) does not exceed 8% of their household income ($6,400). Example 3.Family with some members eligible for government-sponsored coverage . (i) In 2016 Tax- payers U and V are married and file a joint return. U and V have two children, W and X. U and V are inel- igible to enroll in minimum essential coverage other than coverage in the individual market for all months in 2016; however, W and X are eligible for cover- age under CHIP for 2016. The annual premium for U, V, W, and X’s applicable plan is $20,000. The ad- justed annual premium for the second lowest cost sil- ver plan that would cover U and V (the applicable benchmark plan within the meaning of §1.36B–3(f)) is $12,500. U and V’s household income is $50,000, which is 217% of the Federal poverty line for a family size of 4 for the taxable year. W and X do not enroll in CHIP coverage. (ii) Under paragraph (e)(4)(ii)(C) of this section, the credit allowable under section 36B is determined pursuant to section 36B. With household income at 217% of the Federal poverty line, the applicable per- centage is 6.89. Each month in 2016 is a coverage month (within the meaning of §1.36B–3(c)) for U and V, but no months in 2016 are coverage months for W and X because they are eligible for CHIP cover- age. The maximum credit allowable under section 36B is the excess of the premium for the applicable benchmark plan over the product of the household in- come and the applicable percentage ($9,055). There- fore, under paragraph (e)(4)(ii)(A) of this section, the required contribution is $10,945. Under paragraph (e)(1) of this section, U,V, W, and X lack affordable coverage for 2016 because their required contribu- tion ($10,945) exceeds 8% of their household income ($4,000). Example 4.Family with some members enrolled in government-sponsored minimum essential cover- age . The facts are the same asExample 3,exceptW and X enroll in CHIP coverage on January 1, 2016. Under paragraph (e)(4)(ii)(B), U, V, W, and X are members of U and V’s nonexempt family for 2016. Therefore, the annual premium for the applicable plan is the same as in Example 3($20,000). The maximum credit allowable under section 36B is also the same as in Example 3($9,055). Under paragraph (e)(4)(ii)(A) of this section, the required contribution is $10,945. Under paragraph (e)(1) of this section, U and V lack affordable coverage for 2016 because their required contribution ($10,945) exceeds 8% of their household income ($4,000). (f)Household income below filing threshold—(1)In general. An individual is an exempt individual for any taxable year for which the individual’s household income is less than the applicable filing threshold. (2)Applicable filing threshold—(i)In general. For purposes of this section,ap- plicable filing thresholdmeans the amount of gross income that would trigger an in- dividual’s requirement to file a Federal in- come tax return undersection 6012(a)(1). (ii)Certain dependents. The applica- ble filing threshold for an individual who is properly claimed as a dependent by an- other taxpayer is equal to the other tax- payer’s applicable filing threshold. (3)Manner of claiming the exemption. A taxpayer is not required to file a Federal income tax return solely to claim the ex- emption described in this paragraph (f). If a taxpayer has a household income below the applicable filing threshold and never- theless files a Federal income tax return, the taxpayer may claim the exemption de- scribed in this paragraph (f) on the return. (g)Members of Indian tribes. An indi- vidual is an exempt individual for a month that includes a day on which the individual is a member of an Indian tribe. For pur- poses of this section,Indian tribemeans a group or community described in section 45A(c)(6). (h)Individuals with hardship exemption certification—(1)In general. An individ- ual is an exempt individual for a month that includes a day on which the individual has in effect a hardship exemption certification described in paragraph (h)(2) of this sec- tion. (2)Hardship exemption certification. A hardship exemption certification is issued by an Exchange under section 1311(d)(4)(H) of the Affordable Care Act (42 U.S.C. 18031(d)(4)(H)), 45 CFR 155.605(g)(1), (g)(2), (g)(4) and (g)(6), 45 CFR 155.610(i), and 45 CFR 155.615(f), and certifies that an individual has suffered a hardship (as that term is defined in 45 CFR 155.605(g)) affecting the capability to obtain minimum essential coverage. (3)Hardship exemptions that may be claimed on a return. A taxpayer who meets the requirements of 45 CFR 155.605(g)(3) or 45 CFR 155.605(g)(5) may claim a hardship exemption for a cal- endar year on a Federal income tax return. (i) [Reserved] (j)Individuals with certain short cover- age gaps—(1)In general. An individual is an exempt individual for a month the last day of which is included in a short cover- age gap. (2)Short coverage gap—(i)In general. Short coverage gapmeans a continuous period of less than three months in which the individual is not covered under mini- mum essential coverage. If the individual does not have minimum essential coverage for a continuous period of three or more months, none of the months included in the continuous period aretreated as included in a short coverage gap. (ii)Coordination with other exemp- tions. For purposes of this paragraph (j), an individual is treated as having mini- mum essential coverage for a month in which an individual is exempt under any of paragraphs (a) through (h) of this sec- tion. (iii)More than one short coverage gap during calendar year. If a calendar year includes more than one short coverage gap, the exemption provided by this paragraph (j) only applies to the earliest short cover- age gap. (3)Continuous period—(i)In general. Except as provided in paragraph (j)(3)(ii) of this section, the number of months included in a continuous period is deter- mined without regard to the calendar years in which months included in that period occur. For purposes of paragraph (j) of this section, a continuous period begins no earlier than January 1, 2014. (ii)Continuous period straddling more than one taxable year. If an individual does not have minimum essential coverage for a continuous period that begins in one taxable year and ends in the next, for pur- poses of applying this paragraph (j) to the first taxable year, the months in the second taxable year included in the continuous pe- riod are disregarded. For purposes of ap- plying this paragraph (j) to the second tax- able year, the months in the first taxable year included in the continuous period are taken into account. (4)Examples. The following examples illustrate the provisions of this paragraph (j). Unless stated otherwise, in each exam- ple the taxpayer’s taxable year is a calendar year and the taxpayer is ineligible for any September 23, 20132582013–39 I.R.B. of the exemptions described in paragraphs (a) through (h) of this section for a month. Example 1.Short coverage gap. Taxpayer D has minimum essential coverage in 2016 from Jan- uary 1 through March 2. After March 2, D does not have minimum essential coverage until D enrolls in an eligible employer-sponsored plan effective June 15. Under §1.5000A–1(b), for purposes of section 5000A, D has minimum essential coverage for Jan- uary, February, March, and June through December. D’s continuous period without coverage is 2 months, April and May. April and May constitute a short cov- erage gap under paragraph (j)(2)(i) of this section. Example 2.Continuous period of 3 months or more . The facts are the same as inExample 1,except D’s coverage is not effective until July 1. D’s con- tinuous period without coverage is 3 months, April, May, and June. Under paragraph (j)(2)(i) of this sec- tion, April, May, and June are not included in a short coverage gap. Example 3.Short coverage gap following ex- empt period . Taxpayer E is incarcerated from Jan- uary 1 through June 2. E enrolls in an eligible em- ployer-sponsored plan effective September 15. Un- der paragraph (d) of this section, E is exempt for the period January through June. Under paragraph (j)(2)(ii) of this section, E is treated as having mini- mum essential coverage for this period, and E’s con- tinuous period without minimum essential coverage is 2 months, July and August. July and August con- stitute a short coverage gap under paragraph (j)(2)(i) of this section. Example 4.Continuous period covering more than one taxable year . Taxpayer F, an unmarried in- dividual with no dependents, has minimum essential coverage for the period January 1 through October 15, 2016. F is without coverage until February 15, 2017. F files his Federal income tax return for 2016 on March 10, 2017. Under paragraph (j)(3)(ii) of this section, November and December of 2016 are treated as a short coverage gap. However, November and December of 2016 are included in the continuous pe- riod that includes January 2017. The continuous pe- riod for 2017 is not less than 3 months and, therefore, January is not a part of ashort coverage gap. Example 5.Enrollment following loss of cover- age . The facts are the same as inExample 4ex- cept F loses coverage on June 15, 2017. F enrolls in minimum essential coverage effective September 15, 2017. The continuous period without minimum essential coverage in July and August of 2017 is two months and, therefore, is a short coverage gap. Be- cause January 2017 was not part of a short coverage gap, the earliest short coverage gap occurring in 2017 is the gap that includes July and August. Example 6.Multiple coverage gaps. (i) The facts are the same as in Example 5except F has mini- mum essential coverage for November 2016. Under paragraph (j)(3)(ii) of this section, December 2016 is treated as a short coverage gap. (ii) December 2016 is included in the continuous period that includes January 2017. This continuous period is two months and, therefore, January 2017 is the earliest month in 2017 that is included in a short coverage gap. Under paragraph (j)(2)(iii) of this sec- tion, the exemption under this paragraph (j) applies only to January 2017. Thus, the continuous period without minimum essential coverage in July and Au- gust of 2017 is not a short coverage gap. §1.5000A–4 Computation of shared responsibility payment. (a)In general. For each taxable year the shared responsibility payment is the lesser of— (1) The sum of the monthly penalty amounts for each individual in the shared responsibility family; or (2) The sum of the monthly national av- eragebronzeplanpremiumsfortheshared responsibility family. (b)Monthly penalty amount—(1)In general.Monthly penalty amountmeans, for a month that a nonexempt individual is not covered under minimum essential coverage, 1/12 multiplied by the greater of— (i) The flat dollar amount; or (ii) The excess income amount. (2)Flat dollar amount—(i)In general. Flat dollar amountmeans the lesser of— (A) The sum of the applicable dollar amounts for all individuals included in the taxpayer’s shared responsibility family; or (B) 300 percent of the applicable dol- lar amount (determined without regard to paragraph (b)(2)(iii) of this section) for the calendar year with or within which the tax- able year ends. (ii)Applicable dollar amount. Except as provided in paragraphs (b)(2)(iii) and (b)(2)(iv) of this section, the applicable dollar amount is— (A) $95 in 2014; (B) $325 in 2015; or (C) $695 in 2016. (iii)Special applicable dollar amount for individuals under age 18. If an indi- vidual has not attained the age of 18 be- fore the first day of a month, the applicable dollar amount for the individual is equal to one-half of the applicable dollar amount (as expressed in paragraph (b)(2)(ii) of this section) for the calendar year in which the month occurs. For purposes of this para- graph (b)(2)(iii), an individual attains the age of 18 on the anniversary of the date when the individual was born. For exam- ple, an individual born on March 1, 1999, attains the age of 18 on March 1, 2017. (iv)Indexing of applicable dollar amount. In any calendar year after 2016, the applicable dollar amount is $695 as increased by the product of $695 and the cost-of-living adjustment determined under section 1(f)(3) for the calendar year. For purposes of this paragraph (b)(2)(iv), the cost-of-living adjustment is determined by substituting “calendar year 2015” for “calendar year 1992” in section 1(f)(3)(B). If any increase under this para- graph (b)(2)(iv) is not a multiple of $50, the increase is rounded down to the next lowest multiple of $50. (3)Excess income amount—(i)In gen- eral.Excess income amountmeans the product of— (A) The excess of the taxpayer’s household income over the taxpayer’s applicable filing threshold (as defined in §1.5000A–3(f)(2)); and (B) The income percentage. (ii)Income percentage. For purposes of this section,income percentagemeans— (A) 1.0 percent for taxable years begin- ning in 2013; (B) 1.0 percent for taxable years begin- ning in 2014; (C) 2.0 percent for taxable years begin- ning in 2015; or (D) 2.5 percent for taxable years begin- ning after 2015. (c)Monthly national average bronze plan premium.Monthly national average bronze plan premiummeans, for a month for which a shared responsibility payment is imposed, 1/12 of the annual national av- erage premium for qualified health plans that have a bronze level of coverage, would provide coverage for the taxpayer’s shared responsibility family members who do not have minimum essential coverage for the month, and are offered through Exchanges for plan years beginning in the calendar year with or within which the taxable year ends. (d)Examples. The following examples illustrate the provisions of this section. In each example the taxpayer’s taxable year is a calendar year and all members of the taxpayer’s shared responsibility family are ineligible for any of the exemptions de- scribed in §1.5000A–3 for a month. Example 1.Unmarried taxpayer without mini- mum essential coverage . (i) In 2016, Taxpayer G is an unmarried individual with no dependents. G does not have minimum essential coverage for any month in 2016. G’s household income is $120,000. G’s appli- cable filing threshold is $12,000. The annual national average bronze plan premium for G is $5,000. (ii) For each month in 2016, under paragraph (b)(2)(ii) of this section, G’s applicable dollar amount is $695. Under paragraph (b)(2) of this section, G’s flat dollar amount is $695 (the lesser of $695 and$2,085($695x3)). Underparagraph(b)(3)of this section, G’s excess income amount is $2,700 (($120,000 - $12,000) x 0.025). Therefore, under 2013–39 I.R.B.259September 23, 2013 paragraph (b)(1) of this section, the monthly penalty amount is $225 (the greater of $58 ($695/12) or $225 ($2,700/12)). (iii) The sum of the monthly penalty amounts is $2,700 ($225 x 12). The sum of the monthly national average bronze plan premiums is $5,000 ($5,000/12 x 12). Therefore, under paragraph (a) of this section, the shared responsibility payment imposed on G for 2016 is $2,700 (the lesser of $2,700 or $5,000). Example 2.Part-year coverage. The facts are the same as in Example 1, except G has minimum essen- tial coverage for January through June. The sum of the monthly penalty amounts is $1,350 ($225 x 6). The sum of the monthly national average bronze plan premiums is $2,500 ($5,000/12 x 6). Therefore, un- der paragraph (a) of this section, the shared responsi- bility payment imposed on G for 2016 is $1,350 (the lesser of $1,350 or $2,500). Example 3.Family without minimum essential coverage . (i) In 2016, Taxpayers H and J are mar- ried and file a joint return. H and J have three chil- dren: K, age 21, L, age 15, and M, age 10. No mem- ber of the family has minimum essential coverage for any month in 2016. H and J’s household income is $250,000. H and J’s applicable filing threshold is $24,000. The annual national average bronze plan premium for a family of 5 (3 adults, 2 children) is $15,000. (ii) For each month in 2016, under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, the applicable dollar amount is $2,780 (($695 x 3 adults) + (($695/2) x 2 children)). Under paragraph (b)(2)(i) of this sec- tion, the flat dollar amount is $2,085 (the lesser of $2,780 and $2,085 ($695 x 3)). Under paragraph (b)(3) of this section, the excess income amount is $5,650 (($250,000 - $24,000) x 0.025). Therefore, under paragraph (b)(1) of this section, the monthly penalty amount is $470.83 (the greater of $173.75 ($2,085/12) or $470.83 ($5,650/12)). (iii) The sum of the monthly penalty amounts is $5,650 ($470.83 x 12). The sum of the monthly national average bronze plan premiums is $15,000 ($15,000/12 x 12). Therefore, under paragraph (a) of this section, the shared responsibility payment imposed on H and J for 2016 is $5,650 (the lesser of $5,650 or $15,000). Example 4.Change in shared responsibility fam- ily during the year . (i) The facts are the same as in Example 3, except J has minimum essential coverage for January through June. The annual national aver- age bronze plan premium for a family of 4 (2 adults, 2 children) is $10,000. (ii) For the period January through June 2016, un- der paragraphs (b)(2)(ii) and (b)(2)(iii) of this sec- tion the applicable dollar amount is $2,085 (($695 x 2 adults) + (($695/2) x 2 children)). Under para- graph (b)(2)(i) of this section, the flat dollar amount is $2,085 (the lesser of $2,085 or $2,085 ($695 x 3)). (iii) For the period Julythrough December 2016, the applicable dollar amount is $2,780 (($695 x 3 adults) + (($695/2) x 2 children)). Under paragraph (b)(2) of this section, the flat dollar amount is $2,085 (the lesser of $2,780 or $2,085 ($695 x 3)). Under paragraph (b)(3) of this section, the excess income amount is $5,650 (($250,000 - $24,000) x 0.025). Therefore, under paragraph (b)(1) of this section, for January through June the monthly penalty amount is $470.83 (the greater of $173.75 ($2,085/12) or $470.83 ($5,650/12)). The monthly penalty amount for July through December is $470.83 (the greater of $173.75 ($2,085/12) or $470.83 ($5,650/12)). (iv) The sum of the monthly penalty amounts is $5,650 ($470.83 x 12). The sum of the monthly national average bronze plan premiums is $12,500 ((($10,000/12) x 6) + (($15,000/12) x 6))). There- fore, under paragraph (a) of this section, the shared responsibility payment imposed on H and J for 2016 is $5,650 (the lesser of $5,650 or $12,500). Example 5.Eighteenth birthday during the year. (i) In 2016 Taxpayers S and T are married and file a joint return. S and T have one child, U, who turns 18 years old on June 28. S, T, and U do not enroll in, and as a result are not eligible to receive benefits un- der, affordable employer-sponsored coverage offered by T’s employer for 2016. S and T’s household in- come is $60,000. S and T’s applicable filing thresh- old is $24,000. The annual national average bronze plan premium for a family of 3 (2 adults, 1 child) is $11,000. (ii) For the period January through June 2016, un- der paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, the applicable dollar amount is $1,737.50 (($695 x 2 adults) + ($695/2) x 1 child)). Under paragraph (b)(2) of this section, the flat dollar amount is $1,737.50 (the lesser of $1,737.50 or $2,085 ($695 x 3)). (iii) For the period July through December 2016, the applicable dollar amount is $2,085 ($695 x 3). Under paragraph (b)(2) of this section, the flat dollar amount is $2,085 (the lesser of $2,085 or $2,085 ($695 x 3)). Under paragraph (b)(3) of this sec- tion, the excess income amount is $900 (($60,000 - $24,000) x 0.025). Therefore, under paragraph (b)(1) of this section, for January through June the monthly penalty amount is $144.79 (the greater of $144.79 ($1,737.50/12) or $75 ($900/12)). The monthly penalty amount for July through December is $173.75 (the greater of $173.75 ($2,085/12) or $75 ($900/12)). (iv) The sum of the monthly penalty amounts is $1,911.24 (($144.79 x 6) + ($173.75 x 6)). The sum of the monthly national average bronze plan premi- ums is $11,000 ($11,000/12 x 12). Therefore, under paragraph (a) of this section, the shared responsibil- ity payment imposed on H and J for 2016 is $1,911.24 (the lesser of $1,911.24 or $11,000). §1.5000A–5 Administration and procedure. (a)In general. A taxpayer’s liability for the shared responsibility payment for a monthmustbereportedonthetaxpayer’s Federal income tax return for the taxable year that includes the month. The period of limitations for assessing the shared re- sponsibility payment is the same as that prescribed by section 6501 for the tax- able year to which the Federal income tax return on which the shared responsibility payment is to be reported relates. The shared responsibilitypayment is payable upon notice and demand by the Secretary, and except as provided in paragraph (b) of this section, is assessed and collected in the same manner as an assessable penalty un- der subchapter B of chapter 68 of the Inter- nal Revenue Code. The shared responsi- bility payment is not subject to deficiency procedures of subchapter B of chapter 63 of the Internal Revenue Code. Interest on this payment accrues in accordance with the rules in section 6601. (b)Special rules. Notwithstanding any other provision of law— (1)Waiver of criminal penalties.Inthe case of a failure by a taxpayer to timely pay the shared responsibility payment, the tax- payer is not subject to criminal prosecution or penalty for the failure. (2)Limitations on liens and levies.If a taxpayer fails to pay the shared respon- sibility payment imposed by this section and §§1.5000A–1 through 1.5000A–4, the Secretary will not file notice of lien on any property of the taxpayer, or levy on any property of the taxpayer for the failure. (3)Authority to offset against overpay- ment. Nothing in this section prohibits the Secretary from offsetting any liability for the shared responsibility payment against any overpayment due the taxpayer, in ac- cordance with section 6402(a) and its cor- responding regulations. (c)Effective/applicability date.This section and §§1.5000A–1 through 1.5000A–4 apply for months beginning after December 31, 2013. PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT Par. 5. The authority citation for part 602 continues to read as follows: Authority: 26 U.S.C. 7805. Par. 6. In §602.101, paragraph (b) is amended by adding an entry in numerical order to the table to read as follows: §602.101 OMB Control numbers. ***** (b) * * * September 23, 20132602013–39 I.R.B. CFR part or section where identified and described Current OMB Control No. ***** 1.5000A–3 ........................................................... 1545–0074 1.5000A–4 ........................................................... 1545–0074 ***** Heather C. Malo y, Acting Deputy Commissioner for Services a nd Enforcement. Approved Augu st 26, 2013 Mark J. Mazur, Assistant Sec retary of the Treasur y(TaxPolicy). (Filed by the Of fice of the Federal Register on August 27, 2013, 11:15 a.m., and published in the issue of the Federal Register for August 30, 2013, 78 F.R. 53646) 2013–39 I.R.B.261September 23, 2013 Part III. Administrative, Procedural, and Miscellaneous Transitional Penalty Relief and Schedule for Notices of Incorrect Name/TIN Combinations for Information Returns Relating to Payment Card and Third Party Network Transactions Notice 2013–56 PURPOSE This notice provides transitional relief from penalties for a section 6050W filer reporting incorrect taxpayer identification number (TIN) information on information returns (Form 1099–K) and payee state- ments filed under section 6050W of the Internal Revenue Code. The relief pro- vided by this notice is available for certain errors on information returns and payee statements required to be filed or furnished in 2013, based on payments made in cal- endar year 2012, as well as certain re- turns and statements that are required to be filed or furnished in 2014, based on pay- ments made in calendar year 2013, pro- vided that the section 6050W filer makes a good faith effort to accurately file the appropriate information return and the ac- companying payee statement. In addition, this notice informs section 6050W filers that Internal Revenue Ser- vice (IRS) notices informing payors that payee name and TIN combinations are in- correct (CP2100/CP2100A Notices) will not be sent based on incorrect name and TIN combinations on Forms 1099–K due before January 1, 2014. The first CP2100 and CP2100A Notices with respect to pay- ments subject to section 6050W will be sent in late 2014 based on incorrect name and TIN combinations on Forms 1099–K filed in 2014 for calendar year 2013 pay- ments. BACKGROUND Section 6050W, added by section 3091 of the Housing Assistance Tax Act of 2008, Div. C of Pub. L. No. 110–289, 122 Stat. 2653 (the Act),requires that a pay- ment settlement entity (“payor”) making payment to a participating payee (“payee”) in settlement of reportable payment trans- actions must make an information return for each calendar year to be filed with the IRS setting forth the gross amount of such reportable payment transactions, as well as the name, address, and TIN of the payee. A similar statement must be furnished to the payee setting forth the gross amount of such reportable payment transactions, as well as the name, address and phone number of the information contact of the person required to make such return. Section 6050W applies to two types of transactions: (1) payment card trans- actions and (2) third party network trans- actions. All payments made in settlement of payment card transactions must be re- ported in the manner described above. Payments made in settlement of third party network transactions need be reported only if gross payments to a payee exceed $20,000 and the number of such trans- actions exceeds 200 with respect to the participating payee. The information is to be reported to the IRS on Form 1099–K, Payment Card and Third Party Network Payments. Section 6721 imposes penalties on a person for, among other things, failing to include all required information or including incorrect information on an in- formation return. Section 6722 imposes penalties on a person for, among other things, failing to include all required infor- mation or including incorrect information on a payee statement. Notice 2011–89, 2011–46 I.R.B. 748, provided transi- tional penalty relief from penalties for a section 6050W filer reporting incorrect information on information returns (Form 1099–K) and payee statements filed under section 6050W of the Code. This relief was available for information returns and payee statements to be filed in 2012, based on payments made in calendar year 2011, provided that the section 6050W filer made a good faith effort to accurately file the appropriate information return and the accompanying payee statement. Pursuant to section 3406 and the reg- ulations thereunder, a payor must backup withhold from reportable payments made to a payee that has provided an incorrect name and TIN combination with respect to an account for which an information re- turn was filed. Section 3406(a)(1)(B) re- quires that the IRS notify the payor that the payee has provided an incorrect name and TIN combination. The IRS notifies a payor of an incorrect name and TIN com- bination by sending the payor a CP2100 Notice or a CP2100A Notice, listing the incorrect name and TIN combinations re- ported on information returns filed by the payor. Upon receiving a CP2100 Notice or a CP2100A Notice, payors must send a copy of the notice identifying the TIN mismatch to the payee and attempt to ob- tain a correct TIN before beginning backup withholding (“B Notice procedures”).See Treas. Reg. § 31.3406(d)–5 (describing the B Notice procedures). The Act amended section 3406(b)(3) by including payments required to be reported under section 6050W as re- portable payments potentially subject to backup withholding. Treas. Reg. § 31.3406(b)(3)–5(e) requires that backup withholding apply to section 6050W pay- ments made after December 31, 2011, if a payee has not furnished a correct TIN to a section 6050W payor. Notice 2011–88, 2011–46 I.R.B. 748, postponed for one year the effective date for potential backup withholding obliga- tions imposed under section 3406 for sec- tion 6050W payments. Accordingly, the backup withholding requirements of sec- tion 3406 apply to section 6050W pay- ments made after December 31, 2012. DISCUSSION 1.Penalty Relief Sections 6721 and 6722 are applicable to section 6050W payors that must file information returnsfor payments made in settlement of reportable payment transac- tions. Prior to the enactment of section 6050W, payors were not required to file the specific type of information return or to furnish the specific type of payee state- ment now required by section 6050W. In order to provide additional time to develop appropriate procedures for compliance with these new reporting requirements, Notice 2011–89 provided that the IRS would not impose penalties under sec- tions 6721 and 6722 on payors that must file information returns and furnish payee September 23, 20132622013–39 I.R.B. statements in 2012 based on payments made in calendar year 2011, provided that they make good-faith efforts in filing ac- curate Forms 1099–K and furnishing the accompanying payee statements. Since that time, the IRS has been made aware that payors subject to section 6050W re- porting continue to experience greater than usual difficulty in obtaining correct name and TIN information from payees and in resolving name and TIN mismatches. Payors have requested additional transi- tion penalty relief in order to enable them to resolve these issues. After careful consideration of these comments, the Treasury Department and the IRS have decided to extend the penalty relief provided in Notice 2011–89 to cer- tain errors on information returns and payee statements required to be filed and furnished in 2013 and 2014. Specifically, this notice provides relief from penalties under sections 6721 and 6722 for returns and statements required to be filed and furnished in 2013 based on payments made in calendar year 2012 if they have missing TINs, obviously incorrect TINs (as described in section 3406(h)(1)) 1 ,and incorrect name and TIN combinations. In addition, this notice provides relief from penalties under sections 6721 and 6722 for returns and statements required to be filed and furnished in 2014 based on payments made in 2013, but only in cases where the 2013 Form 1099–K contains an incorrect name and TIN combination. Limiting penalty relief for 2013 Forms 1099–K to incorrect name and TIN combinations is warranted because more expansive penalty relief (i.e., relief from penalties for miss- ing or obviously incorrect TINs) would be inconsistent with the payor’s backup withholding obligations, which were first effective for payments made on or after January 1, 2013. This notice does not apply to a payor who erroneously fails to file an informa- tion return or payee statement. 2.Schedule for CP2100/CP2100A Notices Payors have asked for guidance re- garding when the IRS will begin send- ing CP2100/CP2100A Notices with re- spect to Forms 1099–K. This notice in- forms payors that the IRS will not issue CP2100/CP2100A Notices based on incor- rect name and TIN combinations reported on Forms 1099–K due before 2014. The IRS will begin sending CP2100/CP2100A Notices with respect to Forms 1099–K in late 2014. These CP2100/CP2100A Notices will be based on incorrect name and TIN combinationsreported on Forms 1099–K required to be filed in 2014 for calendar year 2013 payments. CP2100/CP 2100A Notices are not nec- essary to trigger backup withholding if the payee either did not provide a TIN or pro- vided an obviously incorrect TIN. Payors should continue to backup withhold on cal- endar year 2013 payments to payees who failed to provide a TIN or who provided an obviously incorrect TIN. DRAFTING INFORMATION The principal authors of this notice are Adrienne Griffin and Girish Prasad of the Office of Associate Chief Counsel (Procedure & Administration). For further information regarding this notice contact Adrienne Griffin or Girish Prasad at (202) 622–4910 (not a toll-free call). 1 An obviously incorrect TIN is a TIN that has more or less than nine numbers, or has an alpha character as one of the nine positions. 2013–39 I.R.B.263September 23, 2013 Part IV. Items o fGeneralInterest Notice of Proposed Rulemaking and Notice of Public Hearing User Fees for Processing Installment Agreements and Offers in Compromise REG–144990–12 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notice of public hearing. SUMMARY: This document contains pro- posed amendments to the regulations that provide user fees for installment agree- ments and offers in compromise. The pro- posed amendments affect taxpayers who wish to pay their liabilities through install- ment agreements and offers in compro- mise. This document also provides a no- tice of public hearing on these proposed amendments to the regulations. DATES: Written or electronic comments must be received by September 30, 2013. Outlines of topics to be discussed at the public hearing scheduled for October 1, 2013, at 10 a.m. must be received by September 30, 2013. ADDRESSES: Send submissions to: In- ternal Revenue Service, CC:PA:LPD:PR (REG–144990–12), Room 5203, Post Office Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–144990–12), Courier’s Desk, Internal Revenue Ser- vice, 1111 Constitution Avenue, N.W., Washington, DC 20044, or sent elec- tronically via the Federal eRulemak- ing Portal athttp://www.regulations.gov (indicate IRS and REG–144990–12). The public hearing will be held in the IRS Auditorium beginning at 10 a.m. at the Internal Revenue Service Building, 1111 Constitution Avenue, N.W., Washington, DC 20044. FOR FURTHER INFORMATION CONTACT: Concerning submissions and/or to be placed on the build- ing access list to attend the hearing, Oluwafunmilayo (Funmi) Taylor, at (202) 622–7180; concerning cost methodology, Eva Williams, at (202) 435–5514; concerning the proposed regulations, Girish Prasad, at (202) 622–3620 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background and Explanation of Provisions The Independent Offices Appropria- tions Act (IOAA), which is codified at 31 U.S.C. 9701, authorizes agencies to pre- scribe regulations that establish charges for services provided by the agencies (user fees). The charges must be fair and must be based on the costs to the government, the value of the service to the recipient, the public policy or interest served, and other relevant facts. The IOAA provides that regulations implementing user fees are subject to policies prescribed by the Presi- dent. Those policies are currently set forth in the Office of Management and Budget (OMB) Circular A–25, 58 FR 38142 (July 15, 1993) (the OMB Circular). The OMB Circular encourages agen- cies to charge user fees for govern- ment-provided services that confer ben- efits on identifiablerecipients over and above those benefits received by the gen- eral public. Under the OMB Circular, an agency that seeks to impose a user fee for government-provided services must calculate its full cost of providing those services. In general, the amount of a user fee should recover the cost of providing the service, unless OMB grants an excep- tion. Installment Agreements Section 6159 of the Internal Revenue Code (Code) authorizes the IRS to enter into an agreement with any taxpayer for the payment of tax in installments. 26 CFR 301.6159–1. Before entering into an in- stallment agreement, the IRS may exam- ine the taxpayer’s financial position to de- termine whether such an agreement is ap- propriate. Once the agreement is in effect, the IRS must process the payments and monitor compliance. Section 6331(k)(2) of the Code generally prohibits the IRS from levying to collect taxes while a re- quest to enter into an installment agree- ment is pending, and if rejected for 30 days thereafter, and, if a timely appeal of rejec- tion is filed, for the duration of the appeal. Section 6331(k)(2) of the Code also gener- ally prohibits the IRS from levying to col- lect taxes while an installment agreement is in effect. A taxpayer that enters into an installment agreement therefore receives a special benefit of being allowed to pay an outstanding tax obligation over time. Under sections 300.1 and 300.2 of the Treasury Regulations, the IRS currently charges $105 for entering into an install- ment agreement, except that the fee is $52 for a direct debit installment agreement, which is an agreement whereby the tax- payer authorizes the IRS to request the monthly electronic transfer of funds from the taxpayer’s bank account to the IRS, and the fee is $43 if the taxpayer is a low-income taxpayer (notwithstanding the method of payment). Also, the IRS cur- rently charges $45 for restructuring or re- instating an installment agreement that is in default. The amount of the fees has not changed since 2007. As required by the OMB Circular, the IRS recently completed a routine review of theinstallment agree- ment program and determined that the full cost of an installment agreement is $282, except that the cost is only $122 for a direct debit installment agreement. The IRS also determined that the full cost of restructur- ing or reinstating aninstallment agreement is $85. In accordance with the OMB Circular, these proposed amendments to the regu- lations increase the installment agreement fees to recover more of the costs associ- ated with such agreements. The proposed regulations propose to charge less than full cost. While agencies are generally re- quired to charge full cost, the OMB Circu- lar permits exceptionsto this requirement when the cost of collecting the fees would represent an unduly large part of the fee for the activity or any other condition exists that, in the opinion of the agency head or his designee, justifies an exception. OMB has granted an exception to the full cost requirement of the OMB Circular. After discussions with OMB, the proposed fee September 23, 20132642013–39 I.R.B. for entering into an installment agreement is $120, and the proposed fee for restruc- turing or reinstating an installment agree- ment is $50. The fee for a direct debit in- stallment agreement remains $52, and low income taxpayers, as defined in 26 CFR 300.1(b)(2), would continue to pay $43 for any new installment agreement, includ- ing a direct debit installment agreement. The proposed regulations do not increase the fee for direct debit installment agree- ments because these agreements have a significantly higher completion rate. The proposed fees balance the need to recover costs with the goals of encouraging the use of installment agreements in general and direct debit installment agreements in par- ticular. Offers in Compromise Section 7122 of the Internal Revenue Code gives the Secretary the authority to compromise any civilor criminal case aris- ing under the internal revenue laws, prior to the referral of that case to the Depart- ment of Justice. An offer to compromise may be accepted if there is doubt as to li- ability, if there is doubt as to collectibility, or if acceptance will promote effective tax administration. 26CFR 301.7122–1(b). Before accepting an offer to compromise, the IRS must examine the taxpayer’s fi- nancial position to determine whether such a compromise is appropriate unless it is an offer under section 7122(d)(3)(B) (re- garding offers relating only to issues of li- ability). Once the IRS accepts an offer to compromise, the IRS must process the payments and monitor compliance. When the IRS accepts an offer to compromise, the taxpayer receives the benefit of re- solving its tax liabilities for a compro- mised amount, provided the taxpayer com- plies with the terms of the compromise agreement. Further, section 6331(k)(1) of the Code generally prohibits the IRS from levying to collect taxes while a request to enter into an offer to compromise is pend- ing, and if rejected for 30 days thereafter, and, if a timely appeal of a rejection is filed, for the duration of the appeal. Under section 300.3 of the Treasury Regulations, the IRS currently charges $150 for processing an offer to compro- mise, except that no fee is charged if an offer is based solely on doubt as to liabil- ity, or made by a low income taxpayer, as defined in 26 CFR 300.3(b)(1)(ii). Also, the fee is generally applied to the unpaid taxes if the offer is accepted to promote effective tax administration or accepted based on doubt as to collectibility (in this latter case, a determination must be made that collection of an amount greater than the amount offered would create economic hardship). The amount of the fee has not changed since 2003. As required by the OMB Circular, the IRS recently completed a routine review of the offer to compro- mise program and determined that the full cost of an offer to compromise is $2,718. In accordance with the OMB Circular, this proposed amendment to the regula- tions increases the offer to compromise fee to recover more of the costs associated with such offers. These proposed regula- tions propose to charge less than full cost. While agencies are generally required to charge full cost, the OMB Circular per- mits exceptions to this requirement when the cost of collecting the fees would rep- resent an unduly large part of the fee for the activity or any other condition exists that, in the opinion of the agency head or his designee, justifies an exception. As with the installment agreement fees, OMB has granted an exception to the full cost requirement of the OMB Circular. After discussions with OMB, the proposed fee for processing an offer to compromise is $186. Low-income taxpayers and taxpay- ers making offers based solely on doubt as to liability will continue to pay no fee. Also, as now, the fee is generally applied to the unpaid taxes if the offer is accepted to promote effective tax administration or accepted based on doubt asto collectibility (in this latter case, a determination must be made that collection of an amount greater than the amount offered would create eco- nomic hardship). The proposed fee bal- ances the need to recover costs with the goal of encouraging offers in compromise. The new fee rate for both installment agreements and offers in compromise will be effective January 1, 2014. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Execu- tive Order 13563. Therefore, a regulatory assessment is not required. It is hereby cer- tified that these regulations will not have a significant economic impact on a substan- tial number of small entities. Accordingly, a regulatory flexibility analysis is not re- quired. This certification is based on the information that follows. The economic impact of these regulations on any small entity would result from the entity being required to pay a fee prescribed by these regulations in order to obtain a particular service. The dollar amount of the fee is not, however, substantial enough to have a significant economic impact on any en- tity subject to the fee. Pursuant to sec- tion 7805(f) of the Code, this notice of pro- posed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed amendments to the regulations are adopted as final regu- lations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the “Addresses” heading. The IRS and Treasury Department request comments on all aspects of the proposed regula- tions. All comments will be available at www.regulations.govor upon request. A public hearing has been scheduled for October 1, 2013, beginning at 10 a.m. in the IRS Auditorium of the Internal Rev- enue Service Building, 1111 Constitution Avenue N.W., Washington, D.C. 20044. Due to building security procedures, vis- itors must enter at the Constitution Av- enue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restric- tions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For in- formation about having your name placed on the building access list to attend the hearing, see the “FOR FURTHER INFOR- MATION CONTACT” section of this pre- amble. The rules of 26 CFR 601.601(a)(3) ap- ply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic com- ments and submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (a signed orig- inal and eight (8) copies) by September 2013–39 I.R.B.265September 23, 2013 30, 2013. A period of 10 minutes will be allotted to each person for making com- ments. 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. Drafting Information The principal author of these regula- tionsisKimberlyBarsaoftheOfficeof Associate Chief Counsel (Procedure and Administration). ***** Proposed Amendments to the Regulations Accordingly, 26 CFR part 300 is pro- posed to be amended as follows: PART 300—USER FEES Paragraph 1. The authority citation for part 300 continues to read as follows: Authority: 31 U.S.C. 9701. Par. 2. In §300.1, paragraphs (b) intro- ductory text and (d) are revised to read as follows: §300.1 Installment agreement fee. ***** (b)Fee. The fee for entering into an installment agreement before January 1, 2014, is $105. The fee for entering into an installment agreement on or after January 1, 2014, is $120. A reduced fee applies in the following situations: ***** (d)Effective/applicability date.This section is applicable beginning January 1, 2014. Par. 3. In §300.2, paragraphs (b) and (d) are revised to read as follows: §300.2 Restructuring or reinstatement of installment agreement fee. ***** (b)Fee. The fee for restructuring or reinstating an installment agreement be- fore January 1, 2014, is $45. The fee for restructuring or reinstating an installment agreement on or after January 1, 2014, is $50. ***** (d)Effective/applicability date.This section is applicable beginning January 1, 2014. Par. 4. In §300.3, paragraphs (b)(1) introductory text and (d) are revised to read as follows: §300.3 Offer to compromise fee. ***** (b)Fee. (1) The fee for processing an offer to compromise before January 1, 2014, is $150. The fee for processing an offer to compromise on or after January 1, 2014, is $186. No fee will be charged if an offer is— ***** (d)Effective/applicability date.This section is applicable beginning January 1, 2014. Beth Tucker, Deputy Commissioner for Operations Support. (Filed by the Office of the Federal Register on August 29, 2013, 8:45 a.m., and published in the issue of the Federal Register for August 30, 2013, 78 F.R. 53702) Notice of Proposed Rulemaking Employee Retirement Benefit Plan Returns Required on Magnetic Media REG–111837–13 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: This document contains proposed regulations relating to the re- quirements for filing certain employee retirement benefit plan statements, re- turns, and reports on magnetic media. The term magnetic media includes elec- tronic filing, as well as other magnetic media specifically permitted under ap- plicable regulations, revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet website. These regulations would affect plan ad- ministrators and employers maintaining retirement plans that are subject to various employee benefit reporting requirements under the Internal Revenue Code (Code). DATES: Comments and requests for a public hearing must be received by Octo- ber 29, 2013. ADDRESSES: Send submissions re- lating to the proposed regulations to: CC:PA:LPD:PR (REG–111837–13), room 5205, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington DC, 20044. Submissions may be hand delivered Monday through Friday, be- tween the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–111837–13), Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washing- ton, DC. Alternately, taxpayers may submit comments relating to the proposed regula- tions electronically via the Federal eRule- making Portal atwww.regulations.gov (IRS REG–111837–13). FOR FURTHER INFORMATION CONTACT: Concerning the proposed reg- ulations, William Gibbs or Pamela Kinard at (202) 622–6060; concerning the submission of comments or to request a public hearing, Oluwafunmilayo Taylor at (202) 622–7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background Electronic filing of tax returns bene- fits taxpayers and the IRS by reducing errors that are more likely to occur dur- ing the manual preparation and process- ing of paper returns.Electronic filing re- sults in faster settling of accounts and bet- ter customer service. Requiring that em- ployee retirement benefit plan statements, returns, and reports be filed electronically improves the timeliness and accuracy of the information for both the public and the employee retirement benefit plan commu- nity. Section 6011(e)(1) authorizes the Sec- retary to prescribe regulations providing the standards for determining which re- turns must be filed on magnetic media or in other machine-readable form. Section 6011(e)(2)(A) provides that the Secretary may not require any person to file returns September 23, 20132662013–39 I.R.B. on magnetic media unless the person is re- quired to file at least 250 returns during the calendar year. Section 6011(e)(2)(B) requires that the Secretary, prior to issu- ing regulations requiring these entities to file returns on magnetic media, take into account (among other relevant factors) the ability of the taxpayer to comply at rea- sonable cost with the requirements of such regulations. A statement, return, or report filed electronically with an electronic return transmitter in the manner and time pre- scribed by the Commissioner is deemed to be filed on the date of the electronic postmark given by the return transmitter (that is, a record of the date and time that an authorized electronic return transmitter receives the transmission of a taxpayer’s electronically filed document on its host system). Accordingly,if the electronic postmark is timely, the document is con- sidered filed timely although it is received by the IRS after the last date prescribed for filing. See §301.7502–1(d). Section 414(g) defines a plan admin- istrator as a person specifically so des- ignated by the terms of the plan or, in the event no one is designated: (a) an employer for a single employer plan; (b) an association, committee, joint board of trustees, or other similar group of repre- sentatives for a plan maintained by two or more employers or jointly by one or more employers and one or more employee or- ganizations; or (c) such other person as the Secretary of Treasury may prescribe in regulations. Section 6057(a) requires the plan ad- ministrator (within the meaning of section 414(g)) of each plan to which the vesting standards of section 203 of part 2 of subti- tle B of title I of the Employee Retirement Income Security Act of 1974 (ERISA) ap- plies for a plan year to file, within the time prescribed by regulations, a registra- tion statement with the Secretary of the Treasury. The registration statement must set forth the following information relat- ing to the plan: (1) the name of the plan; (2) the name and address of the plan ad- ministrator; (3) the name and identifying information of plan participants who sepa- rated from service covered by the plan and are entitled to deferred vested retirement benefits; and (4) the nature, amount, and form of deferred vested retirement bene- fits to which the plan participants are enti- tled. The form used to file this registration statement is Form 8955–SSA,Annual Reg- istration Statement Identifying Separated Participants with Deferred Vested Benefits. Section 6057(b) requires that the plan ad- ministrator notify theSecretary of certain changes in the plan, including the name of the plan, the name and address of the plan administrator, the termination of the plan, or any merger or consolidation of the plan with another plan (or the plan’s division into two or more plans). Section 6058(a) generally requires that every employer maintaining a pension, an- nuity, stock bonus, profit-sharing, or other funded plan of deferred compensation, or the plan administrator within the mean- ing of section 414(g) of the plan, file an annual return stating such information as the Secretary may by regulations prescribe with respect to the qualification, finan- cial condition, and operations of the plan. The reporting requirement under section 6058(a) is satisfied by filing a return on the Form 5500 series. The Form 5500, Annual Return/Report of Employee Ben- efit Plan, the Form 5500–SF,Short Form Annual Return/Report of Small Employee Benefit Plan, and Form 5500–EZ,Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan,makeup the Form 5500 series. Section 6059(a) generally requires that a plan administrator of each defined ben- efit plan to which section 412 applies file the actuarial report described in sec- tion 6059(b) for the first plan year for which section 412 applies to the plan and for each third plan year thereafter (or more frequently if the Secretary de- termines that more frequent reports are necessary). The schedules used to file these actuarial reports are the Schedule SB,Single-Employer Defined Benefit Plan Actuarial Information, and the Schedule MB,Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actu- arial Information, which are required to be filed as part of the Form 5500 or Form 5500–SF. On July 21, 2006, the Department of Labor (DOL) published a final rule in the Federal Register(71 FR 41359) requir- ing electronic filing of the Form 5500 and Form 5500–SF for plans covered by Title I of ERISA for plan years beginning on or after January 1, 2008. On November 16, 2007, the DOL published a final rule in theFederal Register(72 FR 64710) post- poning the effective date of the electronic filing mandate so thatthe mandate applies to plan years beginning on or after January 1, 2009. See 29 CFR §2520.104a–2. The electronic filing system mandated by DOL is the computerized ERISA Filing Accep- tance System (EFAST2). Filers of the Form 5500 and Form 5500–SF are required to file electronically through EFAST2. Currently, electronic fil- ing is not available for the Form 5500–EZ. However, certain filers that would other- wise file the Form 5500–EZ on paper may instead file the Form 5500–SF electroni- cally through EFAST2. Under the current requirements, plans that are eligible to use the Form 5500–SF to file electroni- cally include plans that cover fewer than 100 participants at the beginning of the plan year and satisfy certain other require- ments. See the Instructions to the Form 5500–EZ for information about filing the Form 5500–EZ. In order to implement DOL’s mandate for electronic filing of the Form 5500 and Form 5500–SF, certain items on these forms that relate solely to Code require- ments were eliminated. Information on the forms, schedules, and attachments that were eliminated was used by the IRS for compliance purposes. By mandating elec- tronic filing of information, the IRS can obtain valuable plan information that is not currently required to be filed through EFAST2. 1 In coordination with DOL, the IRS anticipates adding items on the Form 5500 and Form 5500–SF relating solely to Code requirements. For those filers that are not subject to IRS electronic filing requirements, the IRS plans to provide a paper-only form containing those Code-re- lated items and an alternative method of filing with the IRS. 1 In its published report on September 20, 2011, the Treasury Inspector General for Tax Administration (TIGTA) recommended that the IRS explore regulatory options for mandating electronic filings of annual employee benefit returns for employee benefit retirementplans. TIGTA believed that this would assist the IRS in satisfying its taxadministration responsibilities. See “The Employee Plans Function Should Continue Its Efforts to Obtain Needed Retirement Plan Information,” Reference Number 2011–10–108 (September 20, 2011). 2013–39 I.R.B.267September 23, 2013 Explanation of Provisions I.In General These regulations provide that a plan administrator (or, incertain situations, an employer maintaining a plan) required by the Code or regulations to file at least 250 returns during the calendar year that in- cludes the first day of the plan year must use magnetic media to file certain state- ments, returns, and reports under sections 6057, 6058, and 6059. Magnetic media is defined as electronic filing or other me- dia specifically permitted under applicable regulations, revenue procedures, publica- tions, forms, instructions, or other guid- ance on the IRS.gov Internet website. (See §601.601(d)(2)(ii)(b) of this chapter.) Filers of the Form 5500 and Form 5500–SF are already required to file the returns electronically through EFAST2. In addition, many filers of the Form 8955–SSA already voluntarily file elec- tronically with the IRS and also are re- quired to file the Form 5500 and Form 5500–SF electronically through EFAST2. The IRS and the Treasury Department have determined that taxpayers should be able to comply at a reasonable cost with the requirement to file statements, returns, and reports on magnetic media. The determination of whether a filer is required to file at least 250 returns is made by aggregating all returns, regardless of type, that the filer is required to file, in- cluding for example, income tax returns, returns required under section 6033, infor- mation returns, excise tax returns, and em- ployment tax returns. II.Registration Statements and Notifications Required Under Section 6057(a) and (b) The proposed regulations under section 6057 provide that a registration statement under section 6057(a) or notification re- quired under section 6057(b) must be filed on magnetic media if the filer is required by the Code or regulations to file at least 250 returns during the calendar year that includes the first day of the plan year. For purposes of the regulations under section 6057, the term filer means the plan ad- ministrator within the meaning of section 414(g). The proposed regulations under section 6057 provide that if a filer that is required to file electronically fails to do so, the filer is deemed to have failed to file the registration statement or other notifica- tion required under section 6057. Section 6652(d)(1) imposes a penalty on the plan administrator for the failure to file a reg- istration statement required under section 6057(a). Section 6652(d)(2) imposes a penalty on the plan administrator for the failure to file a notification required under section 6057(b). Theproposed regulations under section 6057 provide that rules un- der §301.6652–3(b) apply for purposes of determining whether there is reason- able cause for failure to file a registration statement requiredunder section 6057(a) or notification required under section 6057(b). In addition, rules similar to the rules in §301.6724–1(c)(3)(ii), regarding undue economic hardship relating to filing on magnetic media, will apply. III.Form 5500 Series The proposed regulations under section 6058 provide that a return required under section 6058 must be filed on magnetic media if the filer is required by the Code or regulations to file at least 250 returns dur- ing the calendar year that includes the first day of the plan year. The term filer means the employer or employers maintaining the plan and the plan administrator within the meaning of section 414(g). Thus, in apply- ing the 250-return requirement, the returns of the employer or employers maintaining the plan and of the plan administrator are aggregated. The proposed regulations under section 6058 also provide that, in determining the 250-return requirement, the aggregation rules of section 414(b), (c), (m), and (o) apply to a filer that is, or includes, an employer. Thus, for example, a filer that is a member of a controlled group of cor- porations within the meaning of section 414(b) must file the Form 5500 series on magnetic media if the aggregate number of returns required to be filed by the con- trolled group of corporations is at least 250. These aggregation rules also apply to the regulations under sections 6057 and 6059 if the plan administrator is the em- ployer. The proposed regulations under section 6058 provide that if the filer is required to file electronically but fails to do so, the filer is deemed to have failed to file the Form 5500 series. For a failure to file the Form 5500 series, a penalty under section 6652(e) applies. The proposed regulations under section 6058 provide that rules under §301.6652–3(b) apply for purposes of determining whether there is reasonable cause for failure to file a return. In addition, rules similar to the rules in §301.6724–1(c)(3)(ii), regarding undue economic hardship relating to filing on magnetic media, will apply. IV.Actuarial Reports The proposed regulations under section 6059 provide that an actuarial report re- quired under section 6059 must be filed on magnetic media if the filer is required by the Code or regulations to file at least 250 returns during the calendar year that includes the first day of the plan year. For purposes of the regulations under section 6059, the term filer means the plan ad- ministrator within the meaning of section 414(g). The proposed regulations under sec- tion 6059 provide that if a filer that is required to file electronically fails to do so, the filer is deemed to have failed to file the actuarial report required under section 6059. Section 6692 provides that a plan administrator that fails to file the report required under section 6059 shall pay a penalty for each such failure, unless it is shown that there is reasonable cause for the failure. The proposed regulations under section 6059 provide that rules un- der §301.6692–1(c) apply for purposes of determining whether there is reasonable cause for failure to file an actuarial report. In addition, rules similar to the rules in §301.6724–1(c)(3)(ii), regarding undue economic hardship relating to filing on magnetic media, will apply. V.Economic Hardship Waiver These proposed regulations also pro- vide that the Commissioner may waive the requirement to file electronically in cases of undue economic hardship. Because the Treasury Department and the IRS believe that electronic filing will not impose sig- nificant burdens on the taxpayers covered by these regulations, the Commissioner anticipates granting waivers of the elec- tronic filing requirement in only excep- tional cases. Waivers are anticipated to be particularly rare for the filers of Form September 23, 20132682013–39 I.R.B. 5500 and Form 5500–SF (as well as the schedules attached to those forms), be- cause these filers are already required to file electronically under EFAST2. Proposed Effective Date These regulations are proposed to ap- ply for employee retirement benefit plan statements, notifications, returns, and re- ports required to be filed under sections 6057, 6058, and 6059 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not tak- ing into account extensions) after Decem- ber 31, 2014. Special Analyses It has been determined that this notice of proposed rulemaking is not a signifi- cant regulatory action as defined in Ex- ecutive Order 12866. Therefore, a regu- latory assessment is not required. It has also been determined that 5 U.S.C. 533(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In addition, it is hereby certi- fied that any collection of information con- tained in this regulation will not have a significant economic impact on a substan- tial number of small entities, and therefore no flexibility analysis under the Regula- tory Flexibility Act (5 U.S.C. chapter 6) is required. Pursuant to section 7805(f) of the Internal Revenue Code, these regula- tions have been submitted to the Office of Chief Counsel for Advocacy of the Small Business Administration for comments on its impact on small businesses. The certification is based on the fact that §§301.6057–1, 301.6058–1, and 301.6059–1 currently require filing with the IRS of information under sections 6057, 6058, and 6059in accordance with applicable forms, schedules, and accom- panying instructions. These proposed regulations merely require that this infor- mation be filed electronically by persons required to file at least 250 returns for the calendar year, consistent with section 6011(e)(2)(A), which provides that, in pre- scribing regulations providing standards for determining which returns must be filed on magnetic media or in other ma- chine-readable form, the Secretary shall not require any person to file returns on magnetic media unless the person is re- quired to file at least 250 returns during the calendar year. Many small entities are unlikely to file 250 returns or more during the calendar year. Filers of the Form 5500 and Form 5500–SF are already required to file the returns electronically through EFAST2 pursuant to DOL reg- ulations. In addition, many filers of the Form 8955–SSA already voluntarily file electronically with the IRS. Further, if a taxpayer’s operations are computerized, reporting in accordance with the regulations should be less costly than filing on paper. The IRS and the Treasury Department have determined that taxpayers should be able to comply at a reasonable cost with the requirement in these regulations to file employee re- tirement statements, returns, and reports on magnetic media. In addition, the pro- posed regulations provide that the IRS may waive the electronic filing require- ments upon a showing of hardship. Comments a nd Requests for Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the “Addresses” heading. The IRS and the Treasury De- partment request comments on all aspects of the rules. All comments are available atwww.regulations.govor upon request. A public hearing will be scheduled if requested in writing by any person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place of the public hearing will be published in theFederal Register. Drafting Information The principal authors of these regulations are William Gibbs and Pamela R. Kinard, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in the development of these regulations. ***** Proposed Amendments to the Regulations Accordingly, 26 CFR part 301 is pro- posed to be amended as follows: Part 301—PROCEDURE AND ADMINISTRATION Par. 1. The authority for part 301 con- tinues to read in part as follows: Authority: 26 U.S.C. 7508*** Par. 2. Section 301.6057–3 is added to read as follows: §301.6057–3 Required use of magnetic media for filing requirements relating to deferred vested retirement benefit. (a)Magnetic media filing require- ments under section 6057. A registration statement requiredunder section 6057(a) or a notification required under section 6057(b) with respect to an employee ben- efit plan must be filed on magnetic media if the filer is required by the Internal Rev- enue Code or regulations to file at least 250 returns during the calendar year that includes the first day of the plan year. Returns filed on magnetic media must be made in accordance with applicable revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet website. In prescribing revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet website, the Commis- sioner may direct the type of magnetic media filing. (See §601.601(d)(2)(ii)(b) of this chapter.) (b)Economic hardship waiver.The Commissioner may waive the require- ments of this section in cases of undue economic hardship. The principal fac- tor in determining hardship will be the amount, if any, by which the cost of filing the registration statements or notifications on magnetic media in accordance with this section exceeds the cost of filing the registration statements or notifications on paper or other media. A request for a waiver must be made in accordance with applicable published guidance, pub- lications, forms, instructions, or other guidance on the IRS.gov Internet website. (See §601.601(d)(2)(ii)(b)ofthischapter.) The waiver will specify the type of filing (that is, a registration statement or notifi- cation under section 6057), and the period to which it applies, and will be subject to such terms and conditions regarding the method of filing as may be prescribed by the Commissioner. 2013–39 I.R.B.269September 23, 2013 (c)Failure to file. Ifafilerrequired to file a registration statement or other notification under section 6057 fails to file the statement or other notification on magnetic media when required to do so by this section, the filer is deemed to have failed to file the statement or other notification. See section 6652(d) for the amount imposed for the failure to file a registration statement or other notifica- tion under section 6057. In determining whether there is reasonable cause for the failure to file the registration state- ment or notification under section 6057, §301.6652–3(b) and rules similar to the rules in §301.6724–1(c)(3)(ii) (regarding undue economic hardship related to filing information returns on magnetic media) will apply. (d)Meaning of terms. The following definitions apply for purposes of this sec- tion. (1)Magnetic media.Thetermmag- netic mediameans electronic filing, as well as other media specifically permitted un- der applicable regulations, revenue proce- dures, or publications, forms, instructions, or other guidance on the IRS.gov Internet website. (See §601.601(d)(2)(ii)(b)ofthis chapter.) (2)Registration statement required un- der section 6057(a).Thetermregistration statement required under section 6057(a) means a Form 8955–SSA (or its succes- sor). (3)Notification required under section 6057(b).Thetermnotification required under section 6057(b)means either a Form 8955–SSA (or its successor) or a Form 5500 series (or its successor). (4)Determination of 250 returns—(i) In general. For purposes of this section, a filer is required to file at least 250 returns if, during the calendar year that includes the first day of the plan year, the filer is required to file at least 250 returns of any type, including information returns (for ex- ample, Forms W–2 and Forms 1099), in- come tax returns, employment tax returns, and excise tax returns. (ii)Definition of filer. For purposes of this section, the termfilermeans the plan administrator within the meaning of section 414(g). If the plan admin- istrator within the meaning of section 414(g) is the employer, the special rules in §1.6058–2(d)(3)(iii) will apply. (e)Example. The following example il- lustrates the provisions of paragraph (d)(4) of this section: Example. In 2014, P, the plan administrator of Plan B, is required to file 252 returns (including Forms 1099–R, Distributions From Pensions, An- nuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. , Form 8955–SSA,Annual Registration Statement Identifying Separated Par- ticipants with Deferred Vested Benefits , Form 5500, Annual Return/Report of Employee Benefit Plan, and Form 945, Annual Return of Withheld Federal Income Tax ). Plan B’s plan year is the calendar year. Because P is required to file at least 250 returns during the 2014 calendar year, P must file the 2014 Form 8955–SSA for Plan B electronically. (f)Effective/applicability date.This section is applicable for registration state- ments and other notifications required to be filed under section 6057 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account extensions) after De- cember 31, 2014. Par. 3. Section 301.6058–2 is added to read as follows: §301.6058–2 Required use of magnetic media for filing requirements relating to informationrequiredinconnectionwith certain plans of deferred compensation. (a)Magnetic media filing requirements under section 6058. A return required under section 6058 with respect to an employee benefit plan must be filed on magnetic media if the filer is required by the Internal Revenue Code or regulations to file at least 250 returns during the cal- endar year that includes the first day of the plan year. Returns filed on magnetic media must be made in accordance with appli- cable revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet website. In pre- scribing revenue procedures, publications, forms, and instructions, or other guidance on the IRS.gov Internet site, the Commis- sioner may direct the type of magnetic media filing. (See §601.601(d)(2)(ii)(b) of this chapter.) (b)Economic hardship waiver.The Commissioner may waive the require- ments of this section in cases of undue economic hardship. The principal factor in determining hardship will be the amount, if any, by which the cost of filing the return on magnetic media in accordance with this section exceeds the cost of filing the returns on paper or other media. A request for a waiver must be made in accordance with applicable published guidance, pub- lications, forms, instructions, or other guidance on the IRS.gov Internet website. (See §601.601(d)(2)(ii)(b)ofthischapter.) The waiver will specify the type of filing (that is, a return required under section 6058) and the period to which it applies, and will be subject to such terms and con- ditions regarding the method of filing as may be prescribed by the Commissioner. (c)Failure to file. Ifafilerrequired to file a return under section 6058 fails to file the return on magnetic media when required to do so by this section, the filer is deemed to have failed to file the return. See section 6652(e) for the ad- dition to tax for failure to file a return. In determining whether there is reason- able cause for failure to file the return, §301.6652–3(b) and rules similar to the rules in §301.6724–1(c)(3)(ii) (regarding undue economic hardship related to filing information returns on magnetic media) will apply. (d)Meaning of terms. The following definitions apply for purposes of this sec- tion. (1)Magnetic media.Thetermmag- netic mediameans electronic filing, as well as other media specifically permitted un- der applicable regulations, revenue proce- dures, or publications, forms, instructions, or other guidance on the IRS.gov Internet website. (See §601.601(d)(2)(ii)(b)ofthis chapter.) (2)Return required under section 6058. The termreturn required under section 6058means the Form 5500 series (or its successor). (3)Determination of 250 returns—(i) In general. For purposes of this section, a filer is required to file at least 250 returns if, during the calendar year that includes the first day of the plan year, the filer is required to file at least 250 returns of any type, including information returns (for ex- ample, Forms W–2 and Forms 1099), in- come tax returns, employment tax returns, and excise tax returns. (ii)Definition of filer. For purposes of this section, the termfilermeans the employer or employers maintaining the plan and the plan administrator within the meaning of section 414(g). (iii)Special rules relating to determin- ing 250 returns. For purposes of applying paragraph (d)(3)(ii) of this section, the ag- September 23, 20132702013–39 I.R.B. gregation rules of section 414(b), (c), (m), and (o) will apply to a filer that is or in- cludes an employer. Thus, for example, a filerthatisamemberofacontrolledgroup of corporations within the meaning of sec- tion 414(b) must file the Form 5500 series on magnetic media if the aggregate num- ber of returns required to be filed by all members of the controlled group of corpo- rations is at least 250. (e)Example. The following example il- lustrates the provisions of paragraph (d)(3) of this section: Example. In 2014, Employer X (the plan sponsor of Plan A) and P (the plan administrator of Plan A) are required to file 267 returns. Employer X is required to file the following: one Form 1120, U.S. Corporation Income Tax Return , 195 Forms W–2,Wage and Tax Statement , 25 Forms 1099–DIV,Dividends and Dis- tributions , one Form 940,Employer’s Annual Federal Unemployment (FUTA) Tax Return , and four Forms 941, Employer’s Quarterly Federal Tax Return.P is required to file 40 Forms 1099–R, Distributions From Pensions, Annuities, Retirement, Profit-Sharing Plans, IRAs, Insurance Contracts, etc .PandEm- ployer X are jointly required to file one Form 5500 se- ries. Plan A’s plan year is the calendar year. Because P and Employer X, in the aggregate, are required to file at least 250 returns during the calendar year, the 2014 Form 5500 for Plan A must be filed electroni- cally. (f)Effective/applicability date.This section is applicable for returns required to be filed under section 6058 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account extensions) after De- cember 31, 2014. Par. 4. Section 301.6059–2 is added to read as follows: §301.6059–2 Required use of magnetic media for filing requirements relating to periodic report of actuary. (a)Magnetic media filing requirements under section 6059. An actuarial report required under section 6059 with respect to an employee benefit plan must be filed on magnetic media if the filer is required by the Internal Revenue Code or regula- tions to file at least 250 returns during the calendar year that includes the first day of the plan year. Actuarial reports filed on magnetic media must be made in accordance with applicable revenue pro- cedures, publications, forms, instructions, or other guidance on the IRS.gov Inter- net website. In prescribing revenue pro- cedures, publications, forms, instructions, or other guidance on the IRS.gov Inter- net website, the Commissioner may direct thetypeofmagnetic media filing. (See §601.601(d)(2)(ii)(b) of this chapter.) (b)Economic hardship waiver.The Commissioner may waive the require- ments of this section in cases of undue economic hardship. The principal factor in determining hardship will be the amount, if any, by which the cost of filing the re- ports on magnetic media in accordance with this section exceeds the cost of filing the reports on paper or other media. A re- quest for a waiver must be made in accor- dance with applicable published guidance, publications, forms, instructions, or other guidance on the IRS.gov Internet website. (See §601.601(d)(2)(ii)(b)ofthischapter.) The waiver will specifythe type of filing (that is, an actuarial report required under section 6059) and the period to which it applies, and will be subject to such terms and conditions regarding the method of filing as may be prescribed by the Com- missioner. (c)Failure to File.Ifafilerrequiredto file an actuarial report under section 6059 fails to file the report on magnetic me- dia when required to do so by this sec- tion, the filer is deemed to have failed to file the report. See section 6692 for the penalty for the failure to file an actuarial report. In determining whether there is reasonable cause for failure to file the re- port, §301.6692–1(c) and rules similar to the rules in §301.6724–1(c)(3)(ii) (regard- ing undue economic hardship related to fil- ing information returns on magnetic me- dia) will apply. (d)Meaning of terms. The following definitions apply forpurposes of this sec- tion. (1)Magnetic media.Thetermmag- netic mediameans electronic filing, as well as other media specifically permitted un- der applicable regulations, revenue proce- dures, or publications, forms, instructions, or other guidance on the IRS.gov Internet website. (See §601.601(d)(2)(ii)(b)ofthis chapter.) (2)Actuarial report required under sec- tion 6059—(i)Single employer plans.For a single employer plan, the termactuarial report required under section 6059means the Schedule SB,Single-Employer De- fined Benefit Plan Actuarial Information, of the Form 5500 series (or its successor). (ii)Multiemployer and certain money purchase plans. For multiemployer and certain money purchase plans, the termac- tuarial report required under section 6059 means the Schedule MB,Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information,of the Form 5500 series (or its successor). (3)Determination of 250 returns—(i) In general. For purposes of this section, a filer is required to file at least 250 returns if, during the calendar year that includes the first day of the plan year, the filer is required to file at least 250 returns of any type, including information returns (for ex- ample, Forms W–2 and Forms 1099), in- come tax returns, employment tax returns, and excise tax returns. (ii)Definition of filer. For purposes of this section, the termfiler means the plan administrator within the meaning of section 414(g). If the plan admin- istrator within the meaning of section 414(g) is the employer, the special rules in §1.6058–2(d)(3)(iii) will apply. (e)Example. The following example il- lustrates the provisions of paragraph (d)(3) of this section: Example. In 2014, P, the plan administrator of Plan B (a single employer defined benefit plan), is required to file 266 returns (including Forms 1099–R, Distributions From Pensions, Annuities, Retirement, Profit-Sharing Plans, IRAs, Insurance Contracts, etc. and one Form 5500 series). Plan B’s plan year is the calendar year. Because P is required to file at least 250 returns during the calendar year, P must file the 2014 Schedule SB of the Form 5500 series for Plan B electronically. (f)Effective/ applicability date.This section is applicable for actuarial reports required to be filed under section 6059 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account exten- sions) after December 31, 2014. Beth Tucker, Deputy Commissioner for Operations Support. (Filed by the Office of the Federal Register on August 29, 2013, 8:45 a.m., and published in the issue of the Federal Register for August 30, 2013, 78 F.R. 53704) 2013–39 I.R.B.271September 23, 2013 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. September 23, 2013i2013–39 I.R.B. Numerical Finding List 1 Bulletins 2013–27 through 2013–39 Announcements: 2013-35, 2013-27 I.R.B.46 2013-36, 2013-33 I.R.B.142 2013-37, 2013-34 I.R.B.155 2013-38, 2013-36 I.R.B.185 2013-39, 2013-35 I.R.B.167 2013-40, 2013-38 I.R.B.226 Notices: 2013-41, 2013-29 I.R.B.60 2013-42, 2013-29 I.R.B.61 2013-43, 2013-31 I.R.B.113 2013-44, 2013-29 I.R.B.62 2013-45, 2013-31 I.R.B.116 2013-46, 2013-31 I.R.B.117 2013-47, 2013-31 I.R.B.120 2013-48, 2013-31 I.R.B.120 2013-49, 2013-32 I.R.B.127 2013-50, 2013-32 I.R.B.133 2013-51, 2013-34 I.R.B.153 2013-52, 2013-35 I.R.B.159 2013-53, 2013-36 I.R.B.173 2013-55, 2013-38 I.R.B.207 2013-56, 2013-39 I.R.B.262 Proposed Regulations: REG-132251-11, 2013-37 I.R.B.191 REG-112815-12, 2013-35 I.R.B.162 REG-114122-12, 2013-35 I.R.B.163 REG-140789-12, 2013-32 I.R.B.136 REG-144990-12, 2013-39 I.R.B.264 REG-111837-13, 2013-39 I.R.B.266 REG-113792-13, 2013-38 I.R.B.211 REG-115300-13, 2013-37 I.R.B.197 Revenue Procedures: 2013-28, 2013-27 I.R.B.28 2013-29, 2013-33 I.R.B.141 2013-30, 2013-36 I.R.B.173 2013-31, 2013-38 I.R.B.208 2013-32, 2013-28 I.R.B.55 2013-33, 2013-38 I.R.B.209 Revenue Rulings: 2013-13, 2013-32 I.R.B.124 2013-15, 2013-28 I.R.B.47 2013-17, 2013-38 I.R.B.201 2013-18, 2013-37 I.R.B.186 2013-19, 2013-39 I.R.B.240 Treasury Decisions: 9620, 2013-27 I.R.B.1 Treasury Decisions— Continued: 9621, 2013-28 I.R.B. 49 9622, 2013-30 I.R.B.64 9623, 2013-30 I.R.B.73 9624, 2013-31 I.R.B.86 9625, 2013-34 I.R.B.147 9626, 2013-34 I.R.B.149 9627, 2013-35 I.R.B.156 9628, 2013-36 I.R.B.169 9629, 2013-37 I.R.B.188 9630, 2013-38 I.R.B.199 9631, 2013-38 I.R.B.205 9632, 2013-39 I.R.B.241 9633, 2013-39 I.R.B.227 1 A cumulative list of all revenue rulings, revenueprocedures, Treasury decisions, etc., publishedin Internal Revenue Bulletins 2013–1 through 2013–26 is in Internal Revenue Bulletin 2013–26, dated June 24, 2013. 2013–39 I.R.B.iiSeptember 23, 2013 Finding List of Current Actions on Previously Published Items 1 Bulletins 2013–27 through 2013–39 Notices: 2005-70 Obsoleted by T.D. 9633, 2013-39 I.R.B. 227 2012-74 Obsoleted by Notice 2013-51, 2013-34 I.R.B. 153 2013-16 Superseded by Notice 2013-55, 2013-38 I.R.B. 207 2013-36 Appendix updated by Notice 2013-55, 2013-38 I.R.B. 207 Superseded by Notice 2013-55, 2013-38 I.R.B. 207 2013-39 Amplified by Notice 2013-47, 2013-31 I.R.B. 120 2013-40 Amplified by Notice 2013-47, 2013-31 I.R.B. 120 Revenue Procedures: 81-60 Modified by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 83-59 Modified by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 86-42 Modified by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 90-52 Modified by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 96-30 Modified by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 97-48 Situation 1 superseded, Situation 2 obsoleted by Rev. Proc. 2013-30, 2013-36 I.R.B. 173 2003-43 Modified and superseded by Rev. Proc. 2013-30, 2013-36 I.R.B. 173 2003-48 Obsoleted in part and superseded in part by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 Revenue Procedures— Continued: 2004-34 Modified and clarified by Rev. Proc. 2013-29, 2013-33 I.R.B. 141 2004-48 Modified and superseded by Rev. Proc. 2013-30, 2013-36 I.R.B. 173 2004-49 Sections 4.01 & 4.02 modified and superseded, Section 4.03 obsoleted by Rev. Proc. 2013-30, 2013-36 I.R.B. 173 2007-44 Modified by Ann. 2013-37, 2013-34 I.R.B. 155 2007-62 Modified and superseded by Rev. Proc. 2013-30, 2013-36 I.R.B. 173 2009-25 Pilot program discontinued by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 2011-18 Modified and clarified by Rev. Proc. 2013-29, 2013-33 I.R.B. 141 2011-49 Modified by Ann. 2013-37, 2013-34 I.R.B. 155 2012-25 Obsoleted in part by Rev. Proc. 2013-28, 2013-27 I.R.B. 28 2013-1 Amplified and modified by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 2013-3 Amplified and modified by Rev. Proc. 2013-32, 2013-28 I.R.B. 55 Revenue Rulings: 58-66 Amplified and clarified by Rev. Rul. 2013-17, 2013-38 I.R.B. 201 Treasury Decisions: 9612 Corrected by Ann. 2013-35, 2013-27 I.R.B. 46 9622 Corrected by Ann. 2013-39, 2013-35 I.R.B. 167 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2013–1 through 2013–26 is in Internal Revenue Bulletin 2013–26, dated June 24, 2013. September 23, 2013iii2013–39 I.R.B. Internal Revenue Service W ashington,DC20224 Official Business Penalty for Private Use, $300 INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue Bulletins are available atwww.irs.gov/irb/. CUMULATIVE BULLETINS The contents of the weekly Bulletins were consolidated semiannually into permanent, indexed, Cumulative Bulletins through the 2008–2 edition. INTERNAL REVENUE BULLETINS ON CD-ROM Internal Revenue Bulletins are available annually as partof Publication 1796 (Tax Products CD-ROM). The CD-ROM can be purchased from National Technical Information Service (NTIS)on the Internet atwww.irs.gov/cdorders(discount for online orders) or by calling 1-877-233-6767. The first release is available in mid-December and the final release is available in late January. WE WELCOME COMMENTS ABOUT THE INTERNAL REVENUE BUL LETIN If you have c omments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we would be ple ased to hear from you. You can email us your suggestionsor comments through the IRS Internet Home Page (www.irs.gov) or write to the IRS Bulletin Unit, SE:W:CAR:MP:P:SPA, Washington, DC 20224.
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