us-irs-announcements-irb-2001-16-pdf•Internal Revenue Bulletin 2001-16 (PDF rendition): IRS Announcements
Internal Revenue Bulletin 2001-16 (PDF rendition): IRS Announcements
us-irs-announcements-irb-2001-16-pdfInternal Revenue Bulletin 2001-16 (PDF rendition): IRS AnnouncementsGuidance
Preserve advance releases and the authoritative Internal Revenue Bulletin rendition; directory timestamps are file-publication metadata, not legal effective dates. HTML bulletins begin June 2003; earlier available issues require full PDF parsing. Whole bulletin rendition: numbered items are identified below; other legal material and publisher context remain included. This is not a new standalone advance release.
INCOME TAX T.D. 8944, page 1067. Final regulations and amendments to temporary regulations under section 925 of the Code provide guidance to taxpay- ers that have made an election to be treated as a foreign sales corporation (FSC). These regulations permit the grouping of transactions for purposes of applying the admin- istrative pricing (including marginal costing) rules to deter- mine FSC transfer prices and provide a time for filing for the election to group transactions. REG–105946–00, page 1069. Proposed regulations under section 460 of the Code provide guidance regarding changes in the taxpayer accounting for a long-term contract that has been accounted for under a long-term contract method. A public hearing is scheduled for June 13, 2001. REG–106513–00, page 1076. Proposed regulations under section 643 of the Code and related sections relate to the definition of income for trust purposes. A public hearing is scheduled for June 8, 2001. REG–107101–00, page 1083. Proposed regulations under section 894 of the Code relate to the eligibility for treaty benefits of items of income paid by domestic entities that are not fiscally transparent under U.S. law but are fiscally transparent under the laws of the juris- diction of the person claiming treaty benefits (a domestic reverse hybrid entity). This is the corrected version of what was published in the Federal Register on February 27, 2001. A public hearing is scheduled for June 26, 2001. EMPLOYEE PLANS Announcement 2001–37, page 1090. These regulations delay the effective date, by 60 days, of regulations previously published in T.D. 8931, 2001-7 I.R.B. 542, providing guidance on the HIPAA requirements for group health plans not to establish any rule of eligibility based on a health factor of any individual and not to charge any individual a greater premium or contribution based on a health factor than any similarly situated individual. EXEMPT ORGANIZATIONS Announcement 2001–35, page 1087. A list is provided of organizations now classified as private foundations. Announcement 2001–36, page 1089. A list is provided of organizations that no longer qualify as organizations to which contributions are deductible under section 170 of the Code. ESTATE TAX REG–106513–00, page 1076. Proposed regulations under section 643 of the Code and related sections relate to the definition of income for trust purposes. A public hearing is scheduled for June 8, 2001. Internal Revenue bbuulllleettiinn Bulletin No. 2001–16 April 16, 2001 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. Department of the Treasury Internal Revenue Service Finding Lists begin on page ii. (Continued on the next page) GIFT TAX REG–106513–00, page 1076. Proposed regulations under section 643 of the Code and related sections relate to the definition of income for trust purposes. A public hearing is scheduled for June 8, 2001. ADMINISTRATIVE Announcement 2001-34, page 1087. This announcement sets forth the mutual agreement pur- suant to Article 27 of the U.S.—Republic of Korea Income Tax Convention regarding gains from the disposition of shares of certain Korean real property corporations by U.S. persons. April 16, 20012001–16 I.R.B. 2001–16 I.R.B.April 16, 2001 The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing offi- cial rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conventions, legislation, court decisions, and other items of general interest. It is published weekly and may be obtained from the Superintendent of Documents on a subscription basis. Bulletin contents are consolidated semiannually into Cumulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all sub- stantive rulings necessary to promote a uniform application of the tax laws, including all rulings that supersede, revoke, modify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless other- wise indicated. Procedures relating solely to matters of in- ternal management are not published; however, statements of internal practices and procedures that affect the rights and duties of taxpayers are published. Revenue rulings represent the conclusions of the Service on the application of the law to the pivotal facts stated in the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service 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 pub- lished rulings and procedures, the effect of subsequent leg- islation, regulations, court decisions, rulings, and proce- dures must be considered, and Service personnel and oth- ers concerned are cautioned against reaching the same con- clusions 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 Subpart B, Legislation and Related Committee Reports. Part III.—Administrative, Procedural, and Miscellaneous. To the extent practicable, pertinent cross references to these subjects are contained in the other Parts and Sub- parts. Also included in this part are Bank Secrecy Act Admin- istrative Rulings. Bank Secrecy Act Administrative Rulings are issued by the Department of the Treasury’s Office of the Assistant Secretary (Enforcement). Part IV.—Items of General Interest. This part includes notices of proposed rulemakings, disbar- ment and suspension lists, and announcements. The first Bulletin for each month includes a cumulative index for the matters published during the preceding months. These monthly indexes are cumulated on a semiannual basis, and are published in the first Bulletin of the succeeding semi- annual period, respectively. The IRS Mission Provide America’s taxpayers top quality service by help- ing them understand and meet their tax responsibilities and by applying the tax law with integrity and fairness to all. Introduction The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Section 925.—Transfer Pricing Rules 26 CFR 1.925(a)-1: Transfer pricing rules for FSCs. T.D. 8944 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Grouping Rules for Foreign Sales Corporation Transfer Pricing AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations and removal of temporary regulations. SUMMARY: This document contains final regulations and amendments to temporary regulations that provide guidance to taxpayers that have made an election to be treated as a foreign sales corporation (FSC). These regulations permit the grouping of transactions for purposes of applying the administrative pricing (including marginal costing) rules to determine FSC transfer prices and provide a time for filing for the election to group transactions. DATES: Effective date: These regulations are effective March 2, 2001. Applicability: For dates of applicabil- ity, see §1.925(a)–1(c)(8)(i). FOR FURTHER INFORMATION CONTACT: Christopher J. Bello (202) 874–1490 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background On March 3, 1987, the IRS and Trea- sury published temporary regulations (T.D. 8126, 1987–1 C.B. 184) in the Fed- eral Register(52 FR 6428) to provide (among other things) rules for grouping transactions for purposes of applying the FSC transfer pricing rules. A notice of proposed rulemaking (INTL–153–86, 1987–1 C.B. 799) cross-referencing the temporary regulations and inviting com- ments and requests for a public hearing was published on the same day in the Federal Register(52 FR 6467). Written comments concerning the proposed regu- lations were received and a public hearing was held. On March 3, 1998, the IRS and Trea- sury amended the above temporary regu- lations by publishing temporary regula- tions (T.D. 8764, 1998–1 C.B. 844) in the Federal Register(63 FR 10305) that (among other things) modified the time for filing the election to group transac- tions for purposes of applying the admin- istrative pricing (including marginal cost- ing) rules to determine FSC transfer prices. A notice of proposed rulemaking (REG–102144–98, 1998–1 C.B. 860) cross-referencing the temporary regula- tions and notice of public hearing was published on the same day in the Federal Register(63 FR 10351). Written com- ments concerning the proposed regula- tions were received and, on June 24, 1998, a public hearing was held. After consideration of all the com- ments, certain proposed regulations relat- ing to grouping of transactions for FSC transfer pricing are adopted as revised by this Treasury decision. Explanation of Provisions Section 927(d)(2)(B) of the Internal Revenue Code provides generally that FSCs and their related suppliers may, to the extent provided in regulations, elect to apply the FSC transfer pricing provisions under section 925 on the basis of groups of transactions based on product lines or recognized industry or trade usage, rather than on a transaction-by-transaction basis. Sections 1.925(a)–1T(c)(8)(i) and 1.925(b)–1T(b)(3)(i) of the temporary regulations permit taxpayers, at their an- nual choice, to group transactions in ap- plying the administrative pricing (includ- ing marginal costing) rules to determine FSC transfer prices. Such grouping elec- tions must be evidenced on a Schedule P of the FSC’s timely filed (including ex- tensions) U.S. income tax return for the taxable year. No untimely or amended re- turns are allowed to make a grouping election, change a grouping basis, or change from a grouping basis to a transac- tion-by-transaction basis (collectively “grouping redeterminations”). Section 1.925(a)–1T(c)(8)(i) of the temporary regulations also contains a transition rule that requires grouping re- determinations for any taxable year be- ginning before January 1, 1998, to be made no later than the due date of the FSC’s timely filed (including extensions) U.S. income tax return for the FSC’s first taxable year beginning after December 31, 1997 (transition rule). Conforming changes are reflected in §§1.925(a)–1T(e)(4) and 1.925(b)– 1T(b)(3)(i) of the temporary regulations. Commentators requested that the rule limiting grouping elections to timely filed returns be removed to allow taxpayers to maximize FSC benefits and correct grouping errors. Other commentators re- quested that the time limit for grouping elections be replaced by a case-by-case analysis that would disallow only those grouping redeterminations that are abu- sive. Commentators also suggested alter- native time limits that would allow tax- payers to file amended returns to reflect grouping redeterminations within a speci- fied time limit (for example, one year from the extended due date of the original return). In response to these comments, the Treasury and the IRS have revised the time limits for filing grouping elections under §1.925(a)–1T(c)(8)(i). Accord- ingly, these regulations permit grouping redeterminations no later than one year after the due date of the FSC’s timely filed (including extensions) U.S. income tax return for taxable years beginning after December 31, 1999. For any taxable year beginning before January 1, 2000, a grouping redetermination may be made no later than the due date of the FSC’s timely filed (including extensions) U.S. income tax return for the FSC’s first tax- able year beginning on or after January 1, 2000. Commentators also suggested that the transition rule be extended by two or more years to enable taxpayers to assem- ble data and determine the most advanta- geous groupings for taxable years begin- ning before January 1, 1998. In response, the IRS on May 17, 1999, published No- tice 99–24 (1999–1 C.B. 1069). Notice 99–24 notified taxpayers that the IRS and Treasury intended to extend by one year the transition rule for such years. These 2001–16 I.R.B.1067April 16, 2001 Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 April 16, 200110682001–16 I.R.B. regulations provide a further extension of the transition rule time limit. These regulations also provide an addi- tional time period for certain taxpayers to make grouping redeterminations notwith- standing the time limits for filing group- ing redeterminations otherwise specified in these regulations. In particular, a grouping redetermination may be made at any time during the one-year period com- mencing upon notification of the related supplier by the Internal Revenue Service of an examination, provided that both the FSC and the related supplier agree to ex- tend their respective statutes of limita- tions for assessment by one year. The IRS and Treasury anticipate the IRS and taxpayers to plan and conduct examina- tions in a manner consistent with the fore- going provision so as to facilitate efficient and fair administration of the FSC group- ing rules for transfer pricing. Finally, these regulations provide that the requirements under §1.925(a)– 1T(e)(4) with respect to redeterminations other than grouping also apply to group- ing redeterminations. Special Analyses It has been determined that this Trea- sury decision is not a significant regula- tory action as defined in Executive Order 12866. Therefore, a regulatory assess- ment is not required. It has also been de- termined that section 553(b) of the Ad- ministrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regula- tions, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the temporary regulations and notice of proposed rule-making pre- ceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for com- ment on their impact on small business. Drafting Information The principal author of these regula- tions is Christopher J. Bello of the Office of the Associate Chief Counsel (Interna- tional). Other personnel from the IRS and Treasury Department also participated in the development of these regulations. * * * * * Adoption of Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding an entry in numerical order for section 1.925(a)–1 to read as follows: Authority: 26 U.S.C. 7805 * * * Section 1.925(a)–1 also issued under 26 U.S.C. 925(b)(1) and (2) and 927(d)(2)(B). * * * Par. 2. Section 1.925(a)–1 is added to read as follows: §1.925(a)–1 Transfer pricing rules for FSCs. (a) through (c)(7) [Reserved] For fur- ther guidance, see §1.925(a)–1T(a) through (c)(7). (c)(8) Grouping transactions. (i) The determinations under this section are to be made on a transaction-by-transaction basis. However, at the annual choice made by the related supplier if the admin- istrative pricing methods are used, some or all of these determinations may be made on the basis of groups consisting of products or product lines. The election to group transactions shall be evidenced on Schedule P of the FSC’s U.S. income tax return for the taxable year. No untimely or amended returns filed later than one year after the due date of the FSC’s timely filed (including extensions) U.S. income tax return will be allowed to elect to group, to change a grouping basis, or to change from a grouping basis to a transac- tion-by-transaction basis (collectively “grouping redeterminations”). The rule of the previous sentence is applicable to taxable years beginning after December 31, 1999. For any taxable year beginning before January 1, 2000, a grouping rede- termination may be made no later than the due date of the FSC’s timely filed (includ- ing extensions) U.S. income tax return for the FSC’s first taxable year beginning on or after January 1, 2000. Notwithstanding the time limits for filing grouping redeter- minations otherwise specified in the pre- vious three sentences, a grouping redeter- mination may be made at any time during the one-year period commencing upon notification of the related supplier by the Internal Revenue Service of an examina- tion, provided that both the FSC and the related supplier agree to extend their re- spective statutes of limitations for assess- ment by one year. In addition, any group- ing redeterminations made under this paragraph must meet the requirements under §1.925(a)–1T(e)(4) with respect to redeterminations other than grouping. The language “or grouping of transac- tions” is removed from the fourth sen- tence of §1.925(a)–1T(e)(4), applicable to taxable years beginning after December 31, 1997. See also §1.925(b)–1T(b)(3)(i). (c)(8)(ii) through (f) [Reserved] For further guidance, see §1.925(a)– 1T(c)(8)(ii) through (f). (g) Effective date. The provisions of this section apply on or after March 2, 2001. Par. 3. Section 1.925(a)–1T is amended as follows: 1. Paragraph (c)(8)(i) is revised. 2. The last sentence of paragraph (e)(4) is removed. The revision reads as follows: §1.925(a)–1T Temporary regulations; transfer pricing rules for FSCs. * * * * * (c) * * * (8) * * * (i) * * * [Reserved] For fur- ther guidance, see §1.925(a)–1(c)(8)(i). §1.925(b)–1T [Amended] Par. 4. Section 1.925(b)–1T is amended by removing the last sentence of paragraph (b)(3)(i). Robert E. Wenzel, Deputy Commissioner of Internal Revenue. Approved February 28, 2001. Pamela F. Olson, Acting Assistant Secretary of the Treasury. (Filed by the Office of the Federal Register on March 2, 2001, 8:45 a.m., and published in the issue of the Federal Register for March 6, 2001, 66 F.R. 13427) 2001–16 I.R.B.1069April 16, 2001 Notice of Proposed Rulemaking and Notice of Public Hearing Mid-Contract Change in Taxpayer REG–105946–00 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemak- ing and notice of public hearing. SUMMARY: This document contains proposed regulations concerning a mid- contract change in taxpayer of a contract that has been accounted for under a long- term contract method of accounting. A taxpayer that is a party to such a contract will be affected by these proposed regula- tions. This document also provides notice of a public hearing on the proposed regu- lations. DATES: Written comments must be re- ceived by May 17, 2001. Outlines of oral comments to be presented at the public hearing scheduled for June 13, 2001, at 10 a.m. must be received by May 30, 2001. ADDRESSES: Send submissions to CC:M&SP:RU (REG–105946–00), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand de- livered Monday through Friday between the hours of 8 a.m. and 5 p.m. to: CC:M&SP:RU (REG–105946–00), Courier’s Desk, Internal Revenue Ser- vice, 1111 Constitution Avenue, NW, Washington, DC. Alternatively, taxpayers may submit comments electronically via the Internet by selecting the “Tax Regs” option on the IRS Home Page, or by sub- mitting comments directly to the IRS In- ternet site at http://www.irs.gov/prod/ tax_regs/regslist.html. The public hear- ing will be held in room 6718, Internal Revenue Building, 1111 Constitution Av- enue, NW, Washington, DC. FOR FURTHER INFORMATION CON- TACT: Concerning the proposed regula- tions, John Aramburu or Leo F. Nolan II at (202) 622-4960; concerning submis- sions of comments, the hearing, and/or to be placed on the building access list to at- tend the hearing, Guy Traynor of the Reg- ulations Unit at (202) 622-7180 (not toll- free numbers). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collections of information con- tained in this notice of proposed rulemak- ing have been submitted to the Office of Management and Budget for review in ac- cordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Com- ments on the collections of information should be sent to the Office of Manage- ment and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S:O, Washington, DC 20224. Comments on the collections of information should be received by April 16, 2001. Comments are specifically re- quested concerning: Whether the proposed collections of in- formation are necessary for the proper performance of the functions of the Inter- nal Revenue Service, including whether the information will have practical utility; The accuracy of the estimated burden associated with the proposed collections of information (see below); How the quality, utility, and clarity of the information to be collected may be en- hanced; How the burden of complying with the proposed collections of information may be minimized, including through the ap- plication of automated collection tech- niques or other forms of information tech- nology; and Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide informa- tion. The collection of information in this proposed regulation is in §1.460–6(g) (3)(ii)(C). The information collected in §1.460–6(g)(3)(ii)(C) is required to pro- vide certain recipients of long-term con- tracts with the information needed to make look-back calculations. This collec- tion of information is mandatory. The likely respondents are for-profit entities. Estimated total reporting burden: 10,000 hours. Estimated average burden per respon- dent: 2 hours. Estimated number of respondents: 5000. Estimated annual frequency of re- sponses: On occasion. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the col- lection of information displays a valid control number. Books or records relating to a collec- tion of information must be retained as long as their contents may become mater- ial in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. Background Section 460 of the Internal Revenue Code was enacted by section 804 of the Tax Reform Act of 1986, Public Law 99–514 (100 Stat. 2085, 2358–2361). Section 460 was amended by section 10203 of the Omnibus Budget Reconcili- ation Act of 1987, Public Law 100–203 (101 Stat. 1330, 1330–394); by sections 1008(c) and 5041 of the Technical and Miscellaneous Revenue Act of 1988, Pub- lic Law 100–647 (102 Stat. 3342, 3438–3439 and 3673–3676); by sections 7621 and 7811(e) of the Omnibus Budget Reconciliation Act of 1989, Public Law 101–239 (103 Stat. 2106, 2375–2377 and 2408–2409); by section 11812 of the Om- nibus Budget Reconciliation Act of 1990, Public Law 101–508 (104 Stat. 1388, 1388–534 to 1388–536); by sections 1702(h)(15) and 1704(t)(28) of the Small Business Job Protection Act of 1996, Pub- lic Law 104–188 (110 Stat. 1755, 1874, 1888); and by section 1211 of the Tax- payer Relief Act of 1997, Public Law 105–34 (111 Stat. 788, 998–1000). Section 460(h) directs the Secretary to prescribe regulations to the extent neces- sary or appropriate to carry out the pur- pose of section 460, including regulations to prevent a taxpayer from avoiding sec- tion 460 by using related parties, pass- through entities, intermediaries, options, and other similar arrangements. Part IV. Items of General Interest April 16, 200110702001–16 I.R.B. Explanation of Provisions Overview Generally, manufacturing and construc- tion contracts not completed within the taxable year they are entered into are long-term contracts. A manufacturing contract, however, is not a long-term con- tract unless it requires the manufacture of a unique item or an item normally requir- ing more than 12 months to complete. Section 460 generally requires that long- term contracts be accounted for under the percentage-of-completion method (PCM) and that taxpayers make a look-back com- putation of interest to compensate the government (or the taxpayer) for any un- derestimation (overestimation) of income from the contract. However, home con- struction contracts and certain contracts of smaller construction contractors are ex- empt from these requirements. Moreover, residential builders are entitled to use the 70/30 percentage-of-completion/capital- ized cost method (PCCM), and certain shipbuilders are entitled to use the 40/60 PCCM. A long-term contract or a portion of a long-term contract that is exempt from the PCM may be accounted for under any permissible method, including the completed contract method (CCM) or the exempt percentage-of-completion method (EPCM). These long-term con- tract methods of accounting (i.e., the PCM, PCCM, CCM and EPCM) are de- scribed in proposed §1.460–4. These pro- posed regulations address the Federal in- come tax treatment of a change in taxpayer prior to completion of a long- term contract accounted for under a long- term contract method of accounting. Existing Guidance on Transfers of Long- term Contracts In the case of transactions not governed by section 381, such as those occurring prior to its effective date, numerous cases have required a taxpayer to take into in- come items that under its method of ac- counting would be deferred past the date of the transaction. These cases have in- volved both taxable and nontaxable trans- actions, e.g., liquidations and reorganiza- tions. For example, in the case of a disposition of a long-term contract ac- counted for under the CCM, the transferor was required to recognize income earned on the contract prior to its transfer, with the amount earned determined under some variant of the PCM. These cases generally relied on section 446(b), section 482 and/or the assignment of income doc- trine to allocate income to the transferor. See e.g., Jud Plumbing and Heating, Inc. v. Commissioner, 153 F.2d 681 (5th Cir. 1946); Standard Paving Co. v. Commis- sioner, 190 F.2d 330 (10th Cir.), cert. de- nied, 342 U.S. 860 (1951); Central Cuba Sugar Co. v. Commissioner, 198 F.2d 214 (2nd Cir.),cert. denied, 344 U.S. 874 (1952); Dillard-Waltermire, Inc. v. Camp- bell, 255 F.2d 433 (5th Cir. 1958); and Midland-Ross Corp. v. United States, 485 F.2d 110 (6th Cir. 1973). In addition, §1.451–5(f) of the regulations has been cited as support for taxing a transferor who has deferred advance payments under its long-term contract method of ac- counting. See Rotolo v. Commissioner, 88 T.C. 1500 (1987). Under section 381(c)(4), in the case of a section 381 transaction, an acquiring corporation generally must use the method of accounting used by the trans- feror. Further, regulations under §1.381(c)(4)–1 require the acquiring cor- poration to take into account the trans- feror’s items of income or deduction which, because of its method of account- ing, were not required or permitted to be included or deducted by the transferor in computing taxable income prior to the date of the transfer. Consistent with sec- tion 381, the IRS has held that section 381 generally requires a transferee to account for a long-term contract transferred pur- suant to a section 381 transaction using the CCM used by the transferor and, thus, to report the entire gain or loss from the contract. Accordingly, the decisions in the Standard Pavingline of cases are gen- erally not applicable to transactions to which section 381 applies. Rev. Rul. 70–83 (1970–1 C.B. 85). In addition, sec- tion 351 generally has been interpreted to prevent recognition of gain or loss by a transferor from a section 351 transfer of partially completed long-term contracts accounted for by the transferor using the CCM. See GCM 39258 (July 13, 1984) applying Rev. Rul. 80–198 (1980–2 C.B. 113) (no gain or loss is recognized to a cash basis transferor with respect to unre- alized accounts receivable and unrecog- nized accounts payable transferred in a section 351 transaction). In 1990, the IRS issued proposed regu- lations (REG–20930–86) (55 FR 23755) that addressed the treatment of a mid-con- tract change in taxpayer of a contract ac- counted for using PCM for purposes of applying the look-back method. Gener- ally, these proposed regulations provided that the successor to the contract “stepped into the shoes” of the predecessor with re- spect to the PCM. Thus, the successor was to continue to use the same PCM used by the predecessor both for purposes of reporting income under the contract and recomputing income under the look- back method. No look-back calculation was to be made until the successor com- pleted the contract, and the successor was liable for look-back interest attributable to both pre- and post-transaction years. On the other hand, except in the case of tax- able dispositions to unrelated parties, the successor could not recover look-back in- terest owed by the government that was attributable to pre-transaction years. These proposed regulations were with- drawn. One criticism of the regulations was that step-in-the-shoes treatment was inappropriate in the case of taxable dispo- sitions. Proposed Provisions Consistent with the existing guidance described above and in response to com- ments received on the 1990 proposed reg- ulations, these proposed regulations di- vide the rules regarding a mid-contract change in taxpayer of a long-term con- tract accounted for under a long-term con- tract method into two categories — con- structive completion transactions and step-in-the-shoes transactions. For this purpose, the step-in-the-shoes rules apply to the following transactions — (1) Transactions described in section 381 (i.e., liquidations under section 332 and reorganizations described in section 368(a)(1)(A), (C), (D), (F), or (G)); (2) Transactions described in section 351; (3) Transactions described in section 368(a)(1)(D) with respect to which the requirements of section 355 (or so much of section 356 as relates to section 355) are met (divisive “D” reorganization); (4) Transfers (e.g. sales) of S corpora- tion stock; 2001–16 I.R.B.1071April 16, 2001 (5) Conversion to or from an S corpo- ration; (6) Members joining or leaving a con- solidated group; and (7) Any other transaction designated in the Internal Revenue Bulletin by the Internal Revenue Service. See 26 CFR 601.601(d)(2)(ii). The constructive completion rules apply to all other transactions. A constructive completion transaction results in the taxpayer originally reporting income under the long-term contract (old taxpayer) recognizing income from the contract based on a contract price that takes into account any amounts realized from the transaction or paid by the old taxpayer to the taxpayer subsequently re- porting income under the long-term con- tract (new taxpayer) that are allocable to the contract. Similarly, the new taxpayer in a constructive completion transaction is treated as though it entered into a new contract as of the date of the transaction, with the contract price taking into account the purchase price and any amount paid by the old taxpayer that is allocable to the contract. In the case of a step-in-the-shoes trans- action, the old taxpayer’s obligation to ac- count for the contract terminates on the date of the transaction and is assumed by the new taxpayer. The new taxpayer must assume the old taxpayer’s methods of ac- counting for the contract, with both the contract price and allocable contract costs based on amounts taken into account by both parties. However, in the case of a tax avoidance transaction, the IRS may allocate income with respect to a trans- ferred long-term contract between the old and new taxpayers. Section §1.451–5(f) will not be applied to a mid-contract change in taxpayer of a contract ac- counted for under a long-term contract method. In the case of a step-in-the-shoes trans- action in which the transferor’s basis in the stock of the transferee is determined by reference to its basis of the property transferred, the basis in the stock of the transferee attributable to the transfer of a long-term contract will not be appropriate unless the amount previously received by the transferor under the long-term con- tract equates to the amount previously recognized as gross receipts by the trans- feror. Under both the PCM and the CCM, however, it is common for the amount re- ceived with respect to a long-term con- tract to differ from the amount recognized because the receipt of progress payments does not affect the recognition of income. To address this situation, the proposed regulations provide that, in the case of a section 351 transaction or a divisive “D” reorganization, the old taxpayer must ad- just its basis in the stock of the new tax- payer by the difference between the amount the old taxpayer has recognized with respect to the contract and the amount the old taxpayer has received or reasonably expects to receive under the contract. The IRS and Treasury Depart- ment specifically request comments with respect to this rule. The proposed regulations also provide rules for applying the look-back method in the case of a mid-contract change in taxpayer. For constructive completion transactions, the look-back method is ap- plied by the old taxpayer with respect to pre-transaction years upon the transac- tion date and, if applicable, by the new taxpayer with respect to post-transaction years upon contract completion. For step-in-the-shoes transactions, the look- back method is applied only by the new taxpayer upon contract completion. The new taxpayer must account for pre- and post-transaction years, with special rules governing the calculation of look-back interest in the case of pre-transaction years. The proposed regulations also re- quire the old taxpayer in such cases to provide certain information to the new taxpayer in order to enable the new tax- payer to make the necessary look-back calculations. The proposed regulations reserve on whether a mid-contract change in tax- payer that results from a partnership transaction, including a transaction de- scribed in section 721, a transaction de- scribed in section 731, and a transfer (e.g., sale) of a partnership interest, should be treated as a constructive completion, or a step-in-the-shoes, transaction. Although these transactions are similar to other step-in-the-shoes transactions, such as nonrecognition transactions (e.g., sections 351 and 332) and transactions where the party responsible for performing the con- tract has not changed (e.g., sales of S cor- poration stock and members joining or leaving consolidated groups), the IRS and Treasury Department are concerned that step-in-the-shoes treatment for these part- nership transactions could more readily facilitate the shifting of income to tax in- different parties than in other situations and thus are concerned about monitoring such activities solely through an anti- abuse rule. In addition, other issues, such as the treatment of long-term contracts under section 704(c), 751, and 752, sig- nificantly complicate, and could thwart, the application of the step-in-the-shoes rule with respect to mid-contract changes involving partnership transactions. The IRS and Treasury Department request comments on the appropriate treatment for mid-contract changes in taxpayer re- sulting from these partnership transac- tions. Proposed Effective Date These regulations are proposed to be applicable for transactions on or after the date they are published in the Federal Register as final regulations. 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 also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submit- ted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small busi- ness. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that the relevant information is already main- tained by taxpayers. Therefore, a Regula- tory Flexibility Analysis under the Regu- latory Flexibility Act (5 U.S.C. chapter 6) is not required. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, considera- tion will be given to any electronic or April 16, 200110722001–16 I.R.B. written comments (a signed original and eight (8) copies) that are submitted timely to the IRS. The IRS and Trea- sury Department specifically request comments on the clarity of the proposed rule and how it could be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for June 13, 2001, at 10 a.m. in room 6718, Internal Revenue Building, 1111 Constitution Avenue, NW, Washington, DC. Due to building security proce- dures, visitors must enter at the 10th Street entrance, located between Consti- tution and Pennsylvania Avenue, NW, In addition, all visitors must present photo identification to enter the building. Be- cause of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 15 minutes be- fore the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the “FOR FURTHER INFORMA- TION CONTACT” section of this pre- amble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by May 30, 2001. A period of 10 minutes will be allotted to each person for mak- ing comments. An agenda showing the scheduling of the speakers will be pre- pared 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 proposed regulations is John Aramburu, Office of Associate Chief Counsel (Income Tax and Accounting). However, other per- sonnel from the IRS and Treasury De- partment participated in their develop- ment. * * * * * Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is pro- posed to be amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. In §1.381(c)(4)–1, a sentence is added at the end of paragraph (a)(2) to read as follows: §1.381(c)(4)–1 Method of accounting. (a) * * * (2) * * *See §1.460–4(k) for rules re- lating to transfers of contracts accounted for using a long-term contract method of accounting in a transaction to which sec- tion 381 applies. * * * * * Par. 3. Section 1.460–0 is amended by: 1. Revising the entry for paragraph (k) of §1.460–4. 2. Adding entries for paragraphs (k)(1) through (k)(6) of §1.460–4. 3. Revising the entry for paragraph (g) of §1.460–6. 4. Adding entries for paragraphs (g) through (g)(3) of §1.460–6. The revisions and additions read as fol- lows: §1.460–0 Outline of regulations under section 460. * * * * * §1.460–4 Methods of accounting for long-term contracts. * * * * * (k) Mid-contract change in taxpayer. (1) In general. (2) Constructive completion transactions. (i) Scope. (ii) Old taxpayer. (iii) New taxpayer. (3) Step-in-the-shoes transactions. (i) Scope. (ii) Old taxpayer. (iii) New taxpayer. (A) Method of accounting. (B) Contract price. (C) Contract costs. (4) Anti-abuse rule. (5) Examples. (6) Effective date. * * * * * §1.460–6 Look-back method. * * * * * (g) Mid-contract change in taxpayer. (1) In general. (2) Constructive completion transactions. (3) Step-in-the-shoes transactions. (i) General rules. (ii) Application of look-back method to pre-transaction period. (A) Method. (B) Interest accrual period. (C) Information old taxpayer must pro- vide. (iii) Application of look-back method to post-transaction years. * * * * * Par. 4. Section 1.460–4 is amended by: 1. Adding a sentence at the end of paragraph (a). 2. Revising paragraph (k). The revision and addition read as fol- lows: §1.460–4 Methods of accounting for long-term contracts. (a) * * * Finally, paragraph (k) of this section provides rules relating to a mid- contract change in taxpayer of a contract accounted for using a long-term contract method of accounting. * * * * * (k) Mid-contract change in taxpayer— (1) In general. The rules in this paragraph (k) apply if prior to the completion of a long-term contract accounted for using a long-term contract method by a taxpayer (old taxpayer), there is a transaction that makes another taxpayer (new taxpayer) re- sponsible for reporting income from the same contract. For purposes of this para- graph (k) and §1.460–6(g), an old taxpayer also includes any old taxpayer(s) (e.g., pre- decessors) of the old taxpayer. In addition, a change in status from taxable to tax ex- empt or from domestic to foreign, and vice versa,will be considered a change in tax- payer. Finally, a contract will be treated as the same contract if the terms of the con- tract are not substantially changed in con- nection with the transaction, whether or not the customer agrees to release the old tax- payer from any or all of its obligations under the contract. The rules governing constructive completion transactions are provided in paragraph (k)(2) of this section, while the rules governing step-in-the-shoes transactions are provided in paragraph (k)(3) of this section. For application of the look-back method to mid-contract changes in taxpayers for contracts accounted for using the PCM, see §1.460–6(g). (2) Constructive completion transac- tions— (i) Scope. The constructive com- 2001–16 I.R.B.1073April 16, 2001 pletion rules in this paragraph (k)(2) apply to transactions that result in a change in the taxpayer responsible for reporting income from a contract and that are not described in paragraph (k)(3)(i) of this section (constructive completion transactions). Constructive completion transactions generally in- clude, for example, taxable sales under section 1001 and deemed asset sales under section 338. (ii) Old taxpayer. The old taxpayer is treated as completing the contract on the date of the transaction. The total contract price (or, gross contract price in the case of a long-term contract accounted for under the CCM) for the old taxpayer is the sum of any amounts realized from the transaction that are allocable to the con- tract and any amounts the old taxpayer has received or reasonably expects to re- ceive under the contract after the transac- tion. Total contract price (gross contract price) is reduced by any amount paid by the old taxpayer to the new taxpayer, and by any transaction costs, that are allocable to the contract. Thus, the old taxpayer’s allocable contract costs do not include any consideration paid, or costs incurred, as a result of the transaction that are allo- cable to the contract. In the case of a transaction subject to sections 338 or 1060, the amount realized from the trans- action allocable to the contract is deter- mined by using the residual method under §§1.338–6T and 1.338–7T. (iii) New taxpayer. The new taxpayer is treated as entering into a new contract on the date of the transaction. The new taxpayer must evaluate whether the new contract should be classified as a long- term contract within the meaning of §1.460–1(b) and account for the contract under a permissible method of account- ing. For a new taxpayer who accounts for a contract using the PCM, the total con- tract price is any amount the new taxpayer reasonably expects to receive under the contract consistent with paragraph (b)(4) of this section. Total contract price is re- duced in the amount of any consideration paid as a result of the transaction, and by any transaction costs, that are allocable to the contract and is increased in the amount of any consideration received as a result of the transaction that is allocable to the contract. Similarly, the gross contract price for a contract accounted for using the CCM is all amounts the new taxpayer is entitled by law or contract to receive consistent with paragraph (d)(3) of this section, adjusted for any consideration paid (or received) as a result of the trans- action that is allocable to the contract. Thus, the new taxpayer’s allocable con- tract costs do not include any considera- tion paid, or costs incurred, as a result of the transaction that are allocable to the contract. In the case of a transaction sub- ject to sections 338 or 1060, the amount of consideration paid that is allocable to the contract is determined by using the residual method under §§1.338–6T and 1.338–7T. (3) Step-in-the-shoes transactions— (i) Scope. The step-in-the-shoes rules in this paragraph (k)(3) apply to the follow- ing transactions that result in a change in the taxpayer responsible for reporting in- come from a contract (step-in-the-shoes transactions) — (A) Transactions described in section 381 (i.e., liquidations under section 332 and reorganizations described in section 368(a)(1)(A), (C), (D), (F), or (G)); (B) Transactions described in section 351; (C) Transactions described in section 368(a)(1)(D) with respect to which the re- quirements of section 355 (or so much of section 356 as relates to section 355) are met; (D) Transfers (e.g., sales) of S corpora- tion stock; (E) Conversion to or from an S corpo- ration; (F) Members joining or leaving a con- solidated group; and (G) Any other transaction designated in the Internal Revenue Bulletin by the In- ternal Revenue Service. See §601.601(d)(2)(ii) of this chapter. (ii) Old taxpayer– (A) In general. The new taxpayer will “step into the shoes” of the old taxpayer with respect to the con- tract. Thus, consistent with §1.381(c) (4)–1(a)(1)(ii), the old taxpayer’s obliga- tion to account for the contract terminates on the date of the transaction and is as- sumed by the new taxpayer, as set forth in paragraph (k)(3)(iii) of this section. As a result, an old taxpayer using the PCM is required to recognize income from the contract based on the cumulative alloca- ble contract costs incurred as of the date of the transaction. Similarly, an old tax- payer using the CCM is not required to recognize any revenue and may not deduct allocable contract costs incurred with respect to the contract. (B) Basis adjustment. In the case of transactions described in paragraph (k)(3)(i)(B) or (C) of this section, the old taxpayer must adjust its basis in the stock of the new taxpayer by reducing such basis to the extent the amount the old tax- payer has received or reasonably expects to receive under the contract exceeds the amount recognized by the old taxpayer with respect to the contract or by increas- ing such basis to the extent the amount the old taxpayer has recognized with respect to the contract exceeds the amount the old taxpayer has received or reasonably ex- pects to receive under the contract. How- ever, the old taxpayer may not reduce its basis in the stock of the new taxpayer below zero. If the old and new taxpayer do not join in the filing of a consolidated Federal income tax return, the old tax- payer must recognize income to the extent the basis in the stock of the new taxpayer otherwise would be reduced below zero. If the old and new taxpayer join in the fil- ing of a consolidated Federal income tax return, the old taxpayer must create an (or increase an existing) excess loss account to the extent the basis in the stock of the new taxpayer otherwise would be reduced below zero. See §§1.1502–19 and 1.1502–32(a)(3)(ii). (iii) New taxpayer— (A) Method of ac- counting. Beginning on the date of the transaction, the new taxpayer must ac- count for the long-term contract by using the same method of accounting used by the old taxpayer prior to the transaction consistent with §1.381(c)(4)–1(b)(4). The same method of accounting must be used for such contract regardless of whether the old taxpayer’s method is the new tax- payer’s principal method of accounting under §1.381(c)(4)–1(b)(3) or whether the new taxpayer is otherwise eligible to use the old taxpayer’s method. Thus, if the old taxpayer uses the PCM to account for the contract, the new taxpayer steps into the shoes of the old taxpayer with respect to its completion factor and percentage of completion methods (such as the 10-per- cent method), even if the new taxpayer has not elected such methods for similarly classified contracts. Similarly, if the old taxpayer uses the CCM, the new taxpayer April 16, 200110742001–16 I.R.B. steps into the shoes of the old taxpayer with respect to the CCM, even if the new taxpayer is not otherwise eligible to use the CCM. However, the new taxpayer is not necessarily bound by the old tax- payer’s method for similarly classified contracts entered into by the new taxpayer subsequent to the transaction and must apply general tax principles, including section 381, to determine the appropriate method to account for these subsequent contracts. To the extent that general tax principles allow the taxpayer to account for similarly classified contracts using a method other than the old taxpayer’s method, the taxpayer is not required to ob- tain the consent of the Commissioner to begin using such other method. (B) Contract price. The total contract price for the new taxpayer is the sum of any amounts the old taxpayer or new tax- payer have received or reasonably expect to receive under the contract consistent with paragraph (b)(4) of this section. Similarly, the gross contract price in the case of a long-term contract accounted for under the CCM includes all amounts the old taxpayer or new taxpayer are entitled by law or by contract to receive consistent with paragraph (d)(3) of this section. (C) Contract costs. Total allocable contract costs for the new taxpayer are the allocable contract costs as defined under paragraph (b)(5) of this section in- curred by either the old taxpayer prior to or the new taxpayer after the transaction. Thus, any payments between the old tax- payer and the new taxpayer with respect to the contract are not treated as part of contract price or an allocable contract cost. (4) Anti-abuse rule. Notwithstanding this paragraph (k), in tax avoidance cases, the Commissioner may allocate to the old (or new) taxpayer the income from a long-term contract properly allocable to the old (or new) taxpayer. For example, the Commissioner may scrutinize a trans- action in which a long-term contract ac- counted for using the CCM, or using the PCM where the old taxpayer has received advance payments in excess of its contri- bution to the contract, is transferred to a tax indifferent party. (5) Examples. The following examples illustrate the rules of this paragraph (k). For purposes of these examples, it is as- sumed that the contracts are long-term construction contracts accounted for using the PCM prior to the transaction un- less stated otherwise and the contracts are not transferred in tax avoidance cases. The examples are as follows: Example 1. Constructive completion — PCM. (i) Facts. In Year 1, X enters into a contract. The total contract price is $1,000,000 and the estimated total al- locable contract costs are $800,000. In Year 1, X in- curs costs of $200,000. In Year 2, X incurs additional costs of $400,000 before selling the contract as part of the sale of its business in Year 2 to Y, an unrelated party. At the time of sale, X has received $650,000 in progress payments under the contract. The considera- tion allocable to the contract under section 1060 is $150,000. Pursuant to the sale, the new taxpayer Y immediately assumes X’s contract obligations and rights. Y is required to account for the contract using the PCM. In Year 2, Y incurs additional allocable con- tract costs of $50,000. Y correctly estimates at the end of Year 2 that it will have to incur an additional $75,000 of allocable contract costs in Year 3 to com- plete the contract. (ii) Old taxpayer. For Year 1, X reports receipts of $250,000 (the completion factor multiplied by total contract price ($200,000/$800,000 x $1,000,000)) and costs of $200,000, for a profit of $50,000. X is treated as completing the contract in Year 2 because it sold the contract. For purposes of applying the PCM in Year 2, the total contract price is $800,000 (the sum of the amounts received under the contract and the amount realized in the sale ($650,000 + $150,000)) and the total allocable con- tract costs are $600,000 (the sum of the costs in- curred in Year 1 and Year 2 ($200,000 + $400,000)). Thus, in Year 2, X reports receipts of $550,000 (total contract price minus receipts already reported ($800,000 - $250,000)) and costs incurred in year 2 of $400,000, for a profit of $150,000. (iii) New taxpayer. Y is treated as entering into a new contract in Year 2. The total contract price is $200,000 (the amount remaining to be paid under the terms of the contract less the consideration paid allo- cable to the contract ($1,000,000 - $650,000 - $150,000)). The estimated total allocable contract costs at the end of Year 2 are $125,000 (the allocable contract costs that Y reasonably expects to incur to complete the contract ($50,000 + $75,000)). In Year 2, Y reports receipts of $80,000 (the completion factor multiplied by the total contract price [($50,000/$125,000) x $200,000] and costs of $50,000 (the costs incurred after the purchase), for a profit of $30,000. For Year 3, Y reports receipts of $120,000 (total contract price minus receipts already reported ($200,000 - $80,000)) and costs of $75,000, for a profit of $45,000. Example 2. Constructive completion — CCM. (i) Facts. The facts are the same as in Example 1, except that X and Y properly account for the contract under the CCM. (ii) Old taxpayer. X does not report any income or costs from the contract in Year 1. In Year 2, the con- tract is deemed complete for X, and X reports its gross contract price of $800,000 (the sum of the amounts re- ceived under the contract and the amount realized in the sale ($650,000 + $150,000)) and its total allocable contract costs of $600,000 (the sum of the costs in- curred in Year 1 and Year 2 ($200,000 + $400,000)) in that year. (iii) New taxpayer. Y is treated as entering into a new contract in Year 2. Under the CCM, Y reports no gross receipts or costs in Year 2. Y reports its gross contract price of $200,000 (the amount remaining to be paid under the terms of the contract less the consid- eration paid allocable to the contract ($1,000,000 - $650,000 - $150,000)) and its total allocable contract costs of $125,000 (the allocable contract costs that Y incurred to complete the contract ($50,000 + $75,000)) in Year 3, the completion year, for a profit of $75,000. Example 3. Step-in-the-shoes — PCM. (i) Facts. The facts are the same as in Example 1, except that X transfers the contract to Y in exchange for stock of Y in a transaction that qualifies as a statutory merger de- scribed in section 368(a)(1)(A) and does not result in gain or loss to X under section 361(a). (ii) Old taxpayer. For Year 1, X reports receipts of $250,000 (the completion factor multiplied by total contract price ($200,000/$800,000 x $1,000,000)) and costs of $200,000, for a profit of $50,000. Be- cause the mid-contract change in taxpayer results from a transaction described in paragraph (k)(3)(i) of this section, X is not treated as completing the contract in Year 2. In Year 2, X reports receipts of $500,000 (the completion factor multiplied by the total contract price and minus the Year 1 gross receipts [($600,000/$800,000 x $1,000,000) - $250,000]) and costs of $400,000, for a profit of $100,000. (iii) New taxpayer. Because the mid-contract change in taxpayer results from a step-in-the-shoes transaction, Y must account for the contract using the same methods of accounting used by X prior to the transaction. Total contract price is the sum of any amounts that X and Y have received or reasonably ex- pect to receive under the contract, and total allocable contract costs are the allocable contract costs of X and Y. Thus, the estimated total allocable contract costs at the end of Year 2 are $725,000 (the cumulative alloca- ble contract costs of X and the estimated total alloca- ble contract costs of Y ($200,000 + $400,000 + $50,000 + $75,000)). In Year 2, Y reports receipts of $146,552 (the completion factor multiplied by the total contract price minus receipts reported by the old taxpayer ([($650,000/$725,000) x $1,000,000] - $750,000) and costs of $50,000, or a profit of $96,552. For Year 3, Y reports receipts of $103,448 (the total contract price minus prior year receipts ($1,000,000 - $896,552)) and costs of $75,000, for a profit of $28,448. Example 4. Step-in-the-shoes — CCM. (i) Facts. The facts are the same as in Example 3, except that X properly accounts for the contract under the CCM. (ii) Old taxpayer. X reports no income or costs from the contract in Years 1, 2 or 3. (iii) New taxpayer. Because the mid-contract change in taxpayer results from a step-in-the-shoes transaction, Y must account for the contract using the same methods of accounting used by X prior to the transaction. Thus, in Year 3, the completion year, Y reports receipts of $1,000,000 and total contract costs of $725,000, for a profit of $275,000. Example 5. Step-in-the-shoes — Basis adjustment. The facts are the same as in Example 1, except that X transfers the contract (including the uncompleted property with a basis of $0) and $125,000 of cash to a new corporation, Z, in exchange for all of the stock of Z in a section 351 transaction. Thus, under section 358(a), X’s basis in Z is $125,000. X must increase its basis in Z by $100,000 pursuant to paragraph 2001–16 I.R.B.1075April 16, 2001 (k)(3)(ii)(B) of this section because the amount X rec- ognized with respect to the contract, $750,000 ($250,000 receipts in Year 1 + $500,000 receipts in Year 2), exceeds the amount X received under the con- tract, the $650,000 in progress payments, by $100,000. Example 6. Step-in-the-shoes — Basis adjustment. The facts are the same as in Example 2, except that X receives progress payments of $800,000 (rather than $650,000) and transfers the contract (including the un- completed property with a basis of $600,000) and $125,000 of cash to a new corporation, Z, in exchange for all of the stock of Z in a section 351 transaction. Thus, under section 358(a), X’s basis in Z is $725,000. X and Z do not join in filing a consolidated Federal in- come tax return. X must reduce its basis in the stock of Z by $725,000 to zero pursuant to paragraph (k)(3)(ii)(B) of this section because the amount X re- ceived under the contract, $800,000 in progress pay- ments, exceeds the amount recognized by X with re- spect to the contract, $0. In addition, X must recognize income of $75,000 because X’s basis in the stock of Z otherwise would have been reduced below zero by $75,000 (800,000 unrecognized progress pay- ments - 725,000 basis). (6) Effective date. This paragraph (k) is applicable for transactions on or after the date they are published in the Federal Registeras final regulations. Par. 5. In §1.460–6, paragraph (g) is revised to read as follows: §1.460–6 Look-back method. * * * * * (g) Mid-contract change in taxpayer— (1) In general.The rules in this paragraph (g) apply if, as described in §1.460–4(k), prior to the completion of a long-term con- tract accounted for using the PCM or the PCCM by a taxpayer (old taxpayer), there is a transaction that makes another taxpayer (new taxpayer) responsible for reporting in- come from the same contract. The rules governing constructive completion transac- tions are provided in paragraph (g)(2) of this section, while the rules governing step- in-the-shoes transactions are provided in paragraph (g)(3) of this section. For pur- poses of this paragraph, pre-transaction years are all taxable years of the old tax- payer in which the old taxpayer reported (or should have reported) gross receipts from the contract, and post-transaction years are all taxable years of the new tax- payer in which the new taxpayer reported (or should have reported) gross receipts from the contract. (2) Constructive completion transac- tions. In the case of a transaction described in §1.460–4(k)(2)(i) (constructive comple- tion transaction), the look-back method is applied by the old taxpayer with respect to pre-transaction years upon the date of the transaction and, if the new taxpayer uses the PCM or the PCCM to account for the contract, by the new taxpayer with respect to post-transaction years upon completion of the contract. The contract price and allo- cable contract costs to be taken into account by the old taxpayer or the new taxpayer in applying the look-back method are de- scribed in §1.460–4(k)(2). (3) Step-in-the-shoes transactions— (i) General rules. In the case of a transaction described in §1.460–4(k)(3)(i) (step-in-the- shoes transaction), the look-back method is not applied at the time of the transaction, but is instead applied for the first time when the contract is completed by the new tax- payer. Upon completion of the contract, the look-back method is applied by the new taxpayer with respect to both pre-transac- tion years and post-transaction years, tak- ing into account all amounts reasonably expected to be received by either the old or new taxpayer and all allocable contract costs incurred during both periods as de- scribed in §1.460–4(k)(3). The new tax- payer is liable for filing the Form 8697 and for interest computed on hypothetical un- derpayments of tax, and is entitled to re- ceive interest with respect to hypothetical overpayments of tax, for both pre- and post-transaction years. Pursuant to section 6901, the old taxpayer will be secondarily liable for any interest required to be paid with respect to pre-transaction years re- duced by any interest on pre-transaction overpayments. (ii) Application of look-back method to pre-transaction period— (A) Method. The new taxpayer must apply the look-back method to each pre-transaction year that is a redetermination year using the simplified marginal impact method described in para- graph (d) of this section (regardless of whether or not the old taxpayer would have actually used that method and without re- gard to the tax liability ceiling). (B) Interest accrual period. With re- spect to any hypothetical underpayment or overpayment of tax for a pre-transaction year, interest accrues from the due date of the old taxpayer’s tax return (not including extensions) for the taxable year of the un- derpayment or overpayment until the due date of the new taxpayer’s return (not in- cluding extensions) for the completion year or the year of a post-completion adjust- ment, whichever is applicable. (C) Information old taxpayer must pro- vide. In order to help the new taxpayer to apply the look-back method with respect to pre-transaction taxable years, any old tax- payer that reported income from a long- term contract under the PCM or PCCM for either regular or alternative minimum tax purposes is required to provide the infor- mation described in this paragraph to the new taxpayer by the due date (not including extensions) of the old taxpayer’s income tax return for the taxable year ending with, or the first taxable year ending after, a step- in-the-shoes transaction described in §1.460–4(k)(3)(i). The required informa- tion is as follows - - (1) The portion of the contract reported by the old taxpayer under PCM for regular and alternative minimum tax purposes (i.e., whether the old taxpayer used PCM, the 40/60 PCCM method, or the 70/30 PCCM method); (2) The submethod used to apply PCM (e.g., the simplified cost-to-cost method or the 10-percent method); (3) The amount of total contract price re- ported by year; (4) The numerator and the denominator of the completion factor by year; (5) The due date (not including exten- sions) of the old taxpayer’s income tax re- turns for each taxable year in which income was required to be reported; (6) Whether the old taxpayer was a corpo- rate or a noncorporate taxpayer by year; and (7) Any other information required by the Commissioner by administrative pro- nouncement. (iii) Application of look-back method to post-transaction years. With respect to post-transaction taxable years, the new tax- payer must use the same look-back method it uses for other contracts (i.e., the simpli- fied marginal impact method or the actual method) to determine the amount of any hypothetical overpayment or underpay- ment of tax and the time period for comput- ing interest on these amounts. * * * * * David A. Mader, Acting Deputy Commissioner of Internal Revenue. (Filed by the Office of the Federal Register on February 15, 2001, 8:45 a.m., and published in the issue of the Federal Register for February 16, 2001, 66 FR 10643) April 16, 200110762001–16 I.R.B. Notice of Proposed Rulemaking and Notice of Public Hearing Definition of Income for Trust Purposes REG–106513–00 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemak- ing and notice of public hearing. SUMMARY: This document contains proposed regulations revising the defini- tion of income under section 643(b) of the Internal Revenue Code to take into account changes in the definition of trust accounting income under state laws. The proposed regulations also clarify the situations in which capital gains are included in distributable net income under section 643(a)(3). Conforming amendments are made to regulations af- fecting ordinary trusts, pooled income funds, charitable remainder trusts, trusts that qualify for the gift and estate tax marital deduction, and trusts that are ex- empt from generation-skipping transfer taxes. This document also provides no- tice of a public hearing on these pro- posed regulations. DATES: Written and electronic com- ments must be received by May 18, 2001. Outlines of topics to be discussed at the public hearing scheduled for June 8, 2001 must be received by May 18, 2001. ADDRESSES: Send submissions to: CC:M&SP:RU (REG–106513–00), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Wash- ington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 5 p.m. to: CC:M&SP:RU (REG–106513–00), Courier’s Desk, Internal Revenue Ser- vice, 1111 Constitution Avenue, NW, Washington, DC. Alternatively, taxpay- ers may submit comments electronically via the Internet by selecting the “Tax Regs” option on the IRS Home Page, or by submitting comments directly to the IRS Internet site at: http://www.irs. ustreas.gov/tax_regs/regslist.html. The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW, Wash- ington, DC. FOR FURTHER INFORMATION CON- TACT: Concerning the proposed regula- tions, Bradford Poston at (202) 622–3060 (not a toll-free number); concerning sub- missions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Guy R. Traynor, 202-622-8452 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background Section 643(b) provides a definition of the term income for purposes of subparts A through D of part I of subchapter J of the Internal Revenue Code (Code) . The term income, when not modified by any other term, means the amount of income of the trust or estate determined under the terms of the governing instrument and ap- plicable local law. Section 1.643(b)–1 further provides that trust provisions that depart fundamentally from the concepts of local law in determining what consti- tutes income will not be recognized. These statutory and regulatory provi- sions date back to a time when, under state statutes, dividends and interest were considered income and were allocated to the income beneficiary while capital gains were allocated to the principal of the trust. Changes in the types of available invest- ments and in investment philosophies have caused states to revise, or to con- sider revising, these traditional concepts of income and principal. The prudent investor standard for man- aging trust assets has been enacted by many states and encourages fiduciaries to adopt an investment strategy designed to maximize the total return on trust assets. Under this investment strategy, trust as- sets should be invested for total positive return, that is, ordinary income plus ap- preciation, in order to maximize the value of the trust. Thus, under certain economic circumstances, equities, rather than bonds, would constitute a greater portion of the trust assets than they would under traditional investment standards. One of the concerns with shifting trust investments toward equities and away from bonds is the potential adverse im- pact on the income beneficiary. Based on the traditional concepts of income and principal, the income beneficiary is enti- tled only to the dividends and interest earned by the trust assets. The dividend return on equities as a percentage of their value traditionally has been substantially less than the interest return on bonds. To ensure that the income beneficiary is not penalized if a trustee adopts a total return investment strategy, many states have made, or are considering making, re- visions to the definitions of income and principal. Some state statutes permit the trustee to make an equitable adjustment between income and principal if neces- sary to ensure that both the income bene- ficiary and the remainder beneficiary are treated impartially, based on what is fair and reasonable to all of the beneficiaries. Thus, a receipt of capital gains that previ- ously would have been allocated to prin- cipal may be allocated by the trustee to in- come if necessary to treat both parties impartially. Conversely, a receipt of divi- dends or interest that previously would have been allocated to income may be al- located by the trustee to principal if nec- essary to treat both parties impartially. Other states are proposing legislation that would allow the trustee to pay a uni- trust amount to the income beneficiary in satisfaction of that beneficiary’s right to the income from the trust. This unitrust amount will be a fixed percentage, some- times required to be within a range set by state statute, of the fair market value of the trust assets determined annually. Questions have arisen concerning how these state statutory changes affect the de- finition of income provided in section 643(b) and the other Code provisions that rely on the section 643(b) definition of in- come. This definition of income affects trusts including, but not limited to, ordi- nary trusts, charitable remainder trusts, pooled income funds, and qualified sub- chapter S trusts. In addition, trusts that qualify for the gift or estate tax marital deduction must pay to the spouse all the income from the property. All the income is considered paid to the spouse if the effect of the trust is to give the spouse substantially that de- gree of beneficial enjoyment of the trust property that the principles of trust law accord to a person who is unqualifiedly designated as the life beneficiary of a trust. Section 25.2523(e)–1(f) of the Gift Tax Regulations and §20.2056(b)–5(f) of the Estate Tax Regulations. Questions have arisen whether the spouse is entitled 2001–16 I.R.B.1077April 16, 2001 to all the income from the property in a state that permits equitable adjustments or unitrust payments. Similarly, questions have arisen as to whether an otherwise exempt trust which uses equitable adjustments or unitrust payments will be subject to the genera- tion-skipping transfer tax provisions of chapter 13 of the Code. Explanation of provisions Definition of Income The proposed regulations will amend the definition of income under §1.643(b)–1 to take into account certain state statutory changes to the concepts of income and principal. Under the proposed regulations, trust provisions that depart fundamentally from traditional concepts of income and principal (that is, allocating ordinary in- come to income and capital gains to princi- pal) will generally continue to be disre- garded, as they are under the current regulations. However, amounts allocated between income and principal pursuant to applicable state law will be respected if state law provides for a reasonable appor- tionment between the income and remain- der beneficiaries of the total return of the trust for the year, taking into account ordi- nary income, capital gains, and, in some sit- uations, unrealized appreciation. For ex- ample, a state law that provides for the income beneficiary to receive each year a unitrust amount of between 3% and 5% of the annual fair market value of the trust as- sets is a reasonable apportionment of the total return of the trust. Similarly, a state law that permits the trustee to make equi- table adjustments between income and principal to fulfill the trustee’s duty of im- partiality between the income and remain- der beneficiaries is a reasonable apportion- ment of the total return of the trust. In addition, an allocation of capital gains to income will be respected under certain circumstances. Such an allocation will be respected if directed by the terms of the governing instrument and applica- ble local law. Similarly, if a trustee, pur- suant to a discretionary power granted to the trustee by local law or by the govern- ing instrument (if not inconsistent with local law), allocates capital gains to in- come, the allocation will be respected, provided the power is exercised in a rea- sonable and consistent manner. The proposed changes to the regula- tions will permit trustees to implement a total return investment strategy and to fol- low the applicable state statutes designed to treat the income and remainder benefi- ciaries impartially. At the same time, the limitations imposed by the proposed regu- lations ensure that the Code provisions re- lying on the definition of income under section 643(b) are not undermined by an unlimited ability of the trustee to allocate between income and principal. Pooled Income Funds A special rule is proposed to be added to the regulations covering pooled income funds to address the problems arising from the potential application of the new state statutes to these funds. A pooled in- come fund as defined in section 642(c)(5) is a split-interest trust created and main- tained by certain types of charitable orga- nizations. Noncharitable beneficiaries re- ceive the income from the commingled fund during their lives and the charitable organization receives the remainder inter- ests. The income that is to be paid to the noncharitable beneficiaries is income as defined in section 643(b). §1.642(c)–5(i). A pooled income fund is a trust subject to taxation under section 641. It is enti- tled to a distribution deduction under sec- tion 661 for income distributed to the noncharitable beneficiaries. In addition, it receives a charitable deduction under section 642(c)(3) for any amount of net long-term capital gain which pursuant to the terms of the governing instrument is permanently set aside for charitable pur- poses. A pooled income fund is taxed on any net short-term capital gain that is not required to be distributed to the income beneficiaries pursuant to the terms of the governing instrument and applicable local law. Under traditional principles of income and principal, ordinary income would be paid to the income beneficiaries. Any net long-term capital gain would be allocated to principal to be held for the ultimate benefit of the charitable remainderman and therefore would qualify for the chari- table deduction under section 642(c)(3). If a pooled income fund were to pay the income beneficiaries a unitrust amount in satisfaction of their right to income, as provided by proposed state statutes, long- term capital gains would no longer qual- ify for the charitable deduction. Any net long-term capital gain not required to be distributed during the current year would be added to principal. However, the amount of the gain would not be perma- nently set aside for charitable purposes because this amount may be used in the future to make the unitrust payment to the income beneficiaries. A similar situation arises if the trustee is permitted under state law to make equitable adjustments with respect to unrealized appreciation in the value of the trust assets. A portion of any subsequently realized capital gain may already have been treated as distrib- uted to the income beneficiaries in accor- dance with an equitable adjustment distri- bution. The proposed regulations will amend §1.642(c)–2(c) to address these issues for pooled income funds. Thus, no net long- term capital gain qualifies for the charita- ble deduction if, under the terms of the governing instrument and applicable state law, income may be a unitrust amount or may include an equitable adjustment with respect to unrealized appreciation in the value of the trust assets. Charitable Remainder Unitrusts A charitable remainder unitrust is a split-interest trust that provides for a spec- ified distribution to one or more nonchari- table beneficiaries for life or a term of years, with an irrevocable remainder in- terest held for the benefit of a charitable organization. Under section 664(d)(2), the amount distributed to the noncharita- ble beneficiaries is a fixed percentage (not less than 5% and not more than 50%) of the annual fair market value of the trust assets. Alternatively, under section 664(d)(3), the unitrust amount may be the lesser of this fixed percentage amount or trust income (with or without a make-up amount). For this purpose, trust income means income as defined under section 643(b) and the applicable regulations. §1.664–3(a)(1)(i)(b). Under proposed state statutes, trust in- come could be a fixed percentage of the annual fair market value of the trust as- sets, and the fixed percentage may be less than 5%. A net income charitable remain- der unitrust using such a state statutory definition of income would in substance be a fixed percentage unitrust with a per- centage less than the 5% required by sec- April 16, 200110782001–16 I.R.B. tion 664(d)(2). Therefore, the proposed regulations will amend §1.664–3(a) (1)(i)(b) to provide that income under the terms of the governing instrument and ap- plicable local law may not be determined by reference to a fixed percentage of the annual fair market value of the trust prop- erty. If the applicable state law defines income as a unitrust amount, the govern- ing instrument of a net income charitable remainder unitrust must provide its own definition of trust income. In addition, the proposed regulations will provide that capital gains attributable to appreciation in the value of assets after the date con- tributed to the trust or purchased by the trust may be allocated to income under the terms of the governing instrument and applicable local law. Such an allocation, however, may not be discretionary with the trustee. The section 664 regulations already prohibit the allocation of pre-con- tribution gains to income. Capital Gains and Distributable Net Income Section 643(a)(3) provides that gains from the sale or exchange of capital assets are excluded from distributable net in- come to the extent that these gains are al- located to corpus and they are not either paid, credited, or required to be distrib- uted, to a beneficiary during the year, or paid, permanently set aside, or to be used for a charitable purpose. The circum- stances in which capital gains are consid- ered paid or credited to a beneficiary dur- ing the year, and therefore included in distributable net income, are not entirely clear. In addition, the revisions to state law definitions of income have precipi- tated additional questions in this area. The question arises, for example, whether realized capital gains are included in the unitrust amount distributed to the income beneficiary under local law, if the unitrust amount exceeds the trust’s ordinary in- come. The proposed regulations will amend §1.643(a)–3(a) to clarify the circum- stances in which capital gains are includi- ble in distributable net income for the year. In general, capital gains are in- cluded in distributable net income to the extent they are, pursuant to the terms of the governing instrument or local law, or pursuant to a reasonable and consistent exercise of discretion by the fiduciary (in accordance with a power granted to the fiduciary by the governing instrument or local law): allocated to income; allocated to corpus but treated by the fiduciary on the trust’s books, records, and tax returns as part of a distribution to a beneficiary; or allocated to corpus but utilized by the fiduciary in determining the amount which is distributed or required to be dis- tributed to a beneficiary. As is the case under the current regulations, capital gains that are paid, permanently set aside, or to be used for the purposes specified in section 642(c) are included in the distrib- utable net income. Capital losses are net- ted at the trust level against any capital gains, except for a capital gain that is uti- lized in determining the amount that is distributed or required to be distributed to a particular beneficiary. Under the proposed regulations, capital gains will be included in distributable net income under certain circumstances that are directed by the terms of the governing instrument and applicable local law. Thus, any capital gain that is included in the section 643(b) definition of income is included in distributable net income. Similarly, any capital gain that is used to determine the amount or the timing of a distribution to a beneficiary is included in distributable net income. Capital gains are also included in dis- tributable net income if the fiduciary, pur- suant to a discretionary power granted by local law or by the governing instrument (if not inconsistent with local law), treats the capital gains as distributed to a benefi- ciary, provided the power is exercised in a reasonable and consistent manner. Thus, if a trustee exercises a discretionary power by consistently treating any distrib- ution in excess of ordinary income as being made from realized capital gains, any capital gain so distributed is included in distributable net income. The provisions of sections 643(b) and 643(a)(3) are further intertwined when consideration is given to the new state statutory provisions defining income. If, under the terms of the governing instru- ment or applicable local law, realized cap- ital gains are treated as income to the ex- tent the unitrust amount or the equitable adjustment amount exceeds ordinary in- come, capital gains so treated are in- cluded in distributable net income. A similar result is achieved for capital gains consistently allocated to income by the fiduciary pursuant to a discretionary power. In any other situation, capital gains will be excluded from distributable net income and will be taxed to the trust. Distributions in Kind The proposed regulations will clarify the consequences of certain distributions of property in kind for purposes of the distribution deductions under sections 651 and 661. Thus, if property is distrib- uted to a beneficiary in satisfaction of the beneficiary’s right to income, the trust will be treated as having sold the property for its fair market value on the date of dis- tribution. Trusts Qualifying for Gift and Estate Tax Marital Deduction Certain transfers of property in trust for the benefit of the spouse qualify for the marital deduction for gift and estate tax purposes. These transfers include a life estate with a general power of appoint- ment described in sections 2523(e) and 2056(b)(5) and qualified terminal interest property described in sections 2523(f) and 2056(b)(7). One of the requirements of these provisions is that the spouse must be entitled for life to all the income from the trust property. The rules for determining whether the spouse is entitled to all the in- come from either a life estate with a gen- eral power of appointment trust or a qual- ified terminable interest trust are set forth in §20.2056(b)–5(f) of the Estate Tax Regulations and §25.2523(e)–1(f) of the Gift Tax Regulations. These rules pro- vide that if an interest is transferred in trust, the spouse is entitled for life to all the income from the entire interest or a specific portion of the entire interest if the effect of the trust is to give the spouse substantially that degree of beneficial en- joyment of the trust property during the spouse’s life which the principles of the law of trusts accord a person who is un- qualifiedly designated as the life benefi- ciary of a trust. The proposed regulations will provide that a spouse’s interest satisfies the income standard set forth in §§20.2056(b)– 5(f) and 25.2523(e)–1(f) if the spouse is en- titled to income as defined under a state statute that provides for a reasonable appor- tionment between the income and remain- der beneficiaries of the total return of the 2001–16 I.R.B.1079April 16, 2001 trust and that meets the requirements of §1.643(b)–1(a). As the examples under §1.643(b)–1(a) make clear, reasonable ap- portionment can be accomplished through a unitrust definition of income or by giving the trustee the power to make equitable ad- justments between income and principal. In addition, a conforming amendment is made to §20.2056A–5(c)(2) providing rules re- garding distributions of income from a qual- ified domestic trust. Trusts Exempt From Generation-Skipping Transfer Tax In general, under the effective date rules accompanying the generation-skip- ping transfer (GST) tax statutory provi- sions, a trust that was irrevocable on Sep- tember 25, 1985, is not subject to the GST tax provisions, unless a GST transfer is made out of corpus added to the trust after that date. Section 1433(b)(2)(A) of the Tax Reform Act of 1986 (TRA), Public Law 99–514 (100 Stat. 2085, 2731), 1986–3 (Vol. 1) C.B. 1, 634. The regula- tions provide guidance on when certain changes made to the terms of an exempt trust will not be treated as causing the trust to lose its exempt or grandfathered status. One safe-harbor in §26.2601– 1(b)(4)(i)(D) is for modifications that will not shift a beneficial interest in the trust to a lower generation beneficiary or increase the amount of a GST transfer. Under the proposed regulations, the ad- ministration of a pre-September 25, 1985, trust in conformance with a state law that defines income as a unitrust amount, or permits equitable adjustments between in- come and principal to ensure impartiality, and that meets the requirements of §1.643(b)–1(a) will not be treated as a modification that shifts a beneficial inter- est to a lower generation beneficiary, or increases the amount of a generation- skipping transfer. Proposed Effective Date The regulations are proposed to apply to trusts and estates for taxable years that begin on or after the date that final regula- tions are published in the Federal Regis- ter. Special Analyses It has been determined that this notice of proposed rulemaking is not a signifi- cant regulatory action as defined in Exec- utive Order 12866. Therefore, a regula- tory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regula- tions do not impose a collection of infor- mation on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexi- bility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for com- ment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (preferably a signed original and eight (8) copies) and comments sent via the Internet that are submitted timely to the IRS. The IRS and Treasury request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public in- spection and copying. A public hearing has been scheduled for June 8, 2001, in the IRS Auditorium, Internal Revenue Service, 1111 Constitution Avenue, NW, Washing- ton, DC. Owing to building security proce- dures, visitors must enter at the 10 th Street entrance, located between Constitution and Pennsylvania Avenues, NW. Because of access restrictions, visitors will not be ad- mitted beyond the immediate entrance area more than 15 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the “FOR FUR- THER INFORMATION CONTACT” sec- tion of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and an outline of the topics to be dis- cussed and the time to be devoted to each topic (preferably a signed original and eight (8) copies) by May 18, 2001. A pe- riod of 10 minutes will be allotted to each person making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information Various personnel from offices of the IRS and the Treasury Department partici- pated in the development of these pro- posed regulations. * * * * * Proposed Amendments to the Regulations Accordingly, 26 CFR parts 1, 20, 25, and 26 are proposed to be amended as fol- lows: PART 1—–INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. In §1.642(c)–2, paragraph (c) is amended by adding a sentence after the first sentence to read as follows: §1.642(c)–2 Unlimited deduction for amounts permanently set aside for a charitable purpose. * * * * * (c) * * * No amount of net long-term capital gain shall be considered perma- nently set aside for charitable purposes if it is possible, under the terms of the fund’s governing instrument or applicable local law, that the income beneficiaries’ right to income may, at any time, be satis- fied by the payment of either an amount equal to a fixed percentage of the annual fair market value of the trust property or any amount based on unrealized apprecia- tion in the value of the trust property. * * * * * * * * Par. 3. Section 1.643(a)–3 is revised to read as follows: §1.643(a)–3 Capital gains and losses. (a) In general. Except as provided in §1.643(a)–6 and in paragraph (b) of this section, gains from the sale or exchange of capital assets are ordinarily excluded from distributable net income and are not ordinarily considered as paid, credited, or required to be distributed to any benefi- ciary. (b) Capital gains included in distrib- utable net income. Gains from the sale or exchange of capital assets are included in April 16, 200110802001–16 I.R.B. distributable net income to the extent they are, pursuant to the terms of the govern- ing instrument and applicable local law, or pursuant to a reasonable and consistent exercise of discretion by the fiduciary (in accordance with a power granted to the fiduciary by local law or by the governing instrument, if not inconsistent with local law)— (1) Allocated to income; (2) Allocated to corpus but treated by the fiduciary on the trust’s books, records, and tax returns as part of a distribution to a beneficiary; or (3) Allocated to corpus but utilized by the fiduciary in determining the amount which is distributed or required to be dis- tributed to a beneficiary. (c) Charitable contributions included in distributable net income. If capital gains are paid, permanently set aside, or to be used for the purposes specified in section 642(c), so that a charitable deduc- tion is allowed under that section in re- spect of the gains, they must be included in the computation of distributable net in- come. (d) Capital losses. Losses from the sale or exchange of capital assets shall first be netted at the trust level against any gains from the sale or exchange of capital assets, except for a capital gain that is utilized under paragraph (b)(3) of this section in de- termining the amount that is distributed or required to be distributed to a particular beneficiary. See §1.642(h)–1 with respect to capital loss carryovers in the year of final termination of an estate or trust. (e) Examples. The following examples illustrate the rules of this section: Example 1. Under the terms of Trust’s governing instrument, all income is to be paid to Afor life. Trustee is given discretionary powers to invade prin- cipal for A’s benefit and to deem discretionary distri- butions to be made from capital gains realized dur- ing the year. During Trust’s first taxable year, Trust has $5,000 of dividend income and $10,000 of capi- tal gain from the sale of securities. Pursuant to the terms of the governing instrument and applicable local law, Trustee allocates the $10,000 capital gain to principal. During the year, Trustee distributes to A$5,000, representing A’s right to trust income. In addition, Trustee distributes to A$12,000, pursuant to the discretionary power to distribute principal. Trustee does not exercise the discretionary power to deem the discretionary distributions of principal as being paid from capital gains realized during the year. Therefore, the capital gains realized during the year are not included in distributable net income and the $10,000 of capital gain is taxed to the trust. Example 2. The facts are the same as in Example 1, except that Trustee intends to follow a regular practice of treating discretionary distributions as being paid first from any net capital gains realized by Trust during the year. Trustee evidences this treatment by including the $10,000 capital gain in distributable net income on Trust’s federal income tax return so that it is taxed to A. This treatment of the capital gains is a reasonable exercise of Trustee’s discretion. In future years Trustee must treat all dis- cretionary distributions as being made first from any realized capital gains. Example 3. The facts are the same as in Example 1, except that pursuant to the terms of the governing instrument (in a provision not inconsistent with ap- plicable local law), capital gains realized by Trust are allocated to income. Because the capital gains are allocated to income pursuant to the terms of the governing instrument, the $10,000 capital gain is in- cluded in Trust’s distributable net income for the taxable year. Example 4. The facts are the same as in Example 1, except that Trustee decides that discretionary dis- tributions will be made only to the extent Trust has realized capital gains during the year and thus the discretionary distribution to Ais $10,000, rather than $12,000. Because Trustee will consistently use the amount of any realized capital gain to determine the amount of the discretionary distribution to the beneficiary, the $10,000 capital gain is included in Trust’s distributable net income for the taxable year. Example 5. Trust’s assets consist of Blackacre and other property. Under the terms of Trust’s gov- erning instrument, Trustee is directed to hold Black- acre for ten years and then sell it and distribute all the sales proceeds to A. Because Trustee uses the amount of the sales proceeds that includes any real- ized capital gain to determine the amount required to be distributed to A, any capital gain realized from the sale of Blackacre is included in Trust’s distrib- utable net income for the taxable year. Example 6. Under the terms of Trust’s governing instrument, all income is to be paid to Aduring the Trust’s term. When Areaches 35, Trust is to termi- nate and all the principal is to be distributed to A. All capital gains realized in the year of termination are included in distributable net income. See §1.641(b)–3 for the determination of the year of final termination and the taxability of capital gains realized after the terminating event and before final distribution. Example 7.The facts are the same as Example 6, except Trustee is directed to distribute only one-half of the principal to Awhen Areaches 35. Trust assets consist entirely of stock in corporation M. If Trustee sells one-half of the stock and distributes the sales proceeds to A, all the capital gain attributable to that sale is included in distributable net income. If Trustee sells all the stock and distributes one-half of the sales proceeds to A, one-half of the capital gain attributable to that sale is included in distributable net income. Example 8. The facts are the same as Example 6, except Trustee is directed to pay B$10,000 before distributing the remainder of Trust assets to A. No portion of the capital gains is allocable to Bbecause the distribution to Bis a gift of a specific sum of money within the meaning of section 663(a)(1). Example 9. State law provides that a trustee may make an election to pay an income beneficiary an amount equal to four percent of the annual fair mar- ket value of the trust assets in full satisfaction of that beneficiary’s right to income. State law provides that this unitrust amount shall be considered paid first from ordinary income, then from net short–term capital gain, then from net long-term capital gain, and finally from return of principal. Trust’s govern- ing instrument provides that Ais to receive each year income as defined under State law. Trustee makes the unitrust election under State law. At the beginning of the taxable year, Trust assets are valued at $500,000. During the year, Trust receives $5,000 of dividend income and realizes $80,000 of net long- term gain from the sale of capital assets. Trustee distributes to A$20,000 (4% of $500,000) in satis- faction of A’s right to income. Net long-term capital gain in the amount of $15,000 is allocated to income pursuant to the State law ordering rule and is in- cluded in distributable net income for the taxable year. Example 10. The facts are the same as in Exam- ple 9, except that neither State law nor Trust’s gov- erning instrument has an ordering rule for the char- acter of the unitrust amount, but leaves such a decision to the discretion of Trustee. Trustee intends to follow a regular practice of treating principal as distributed to the beneficiary to the extent that the unitrust amount exceeds Trust’s ordinary income. Trustee evidences this treatment by not including any capital gains in distributable net income on Trust’s Federal income tax return so that the entire $80,000 capital gain is taxed to Trust. This treat- ment of the capital gains is a reasonable exercise of Trustee’s discretion. In future years Trustee must consistently follow this treatment with respect to all realized capital gains. Example 11. The facts are the same as in Exam- ple 9, except that neither State law nor Trust’s gov- erning instrument has an ordering rule for the char- acter of the unitrust amount, but leaves such a decision to the discretion of Trustee. Trustee intends to follow a regular practice of treating net capital gains as distributed to the beneficiary to the extent the unitrust amount exceeds Trust’s ordinary in- come. Trustee evidences this treatment by including $15,000 of the capital gain in distributable net in- come on Trust’s Federal income tax return. This treatment of the capital gains is a reasonable exer- cise of Trustee’s discretion. In future years Trustee must consistently treat realized capital gain, if any, as distributed to the beneficiary to the extent that the unitrust amount exceeds ordinary income. Par. 4. Section 1.643(b)–1 is revised to read as follows: §1.643(b)–1 Definition of income. For purposes of subparts A through D, part I, subchapter J, chapter 1 of the Inter- nal Revenue Code, income, when not pre- ceded by the words “taxable,” “distrib- utable net,” “undistributed net,” or “gross,” means the amount of income of an estate or trust for the taxable year de- termined under the terms of the governing instrument and applicable local law. Trust provisions that depart fundamen- tally from traditional principles of income and principal, that is, allocating ordinary income to income and capital gains to 2001–16 I.R.B.1081April 16, 2001 principal, will generally not be recog- nized. However, amounts allocated be- tween income and principal pursuant to applicable local law will be respected if local law provides for a reasonable appor- tionment between the income and remain- der beneficiaries of the total return of the trust for the year, including ordinary in- come, capital gains, and appreciation. For example, a state law that provides for the income beneficiary to receive each year a unitrust amount of between 3% and 5% of the annual fair market value of the trust assets is a reasonable apportionment of the total return of the trust. Similarly, a state law that permits the trustee to make equitable adjustments between income and principal to fulfill the trustee’s duty of impartiality between the income and re- mainder beneficiaries is generally a rea- sonable apportionment of the total return of the trust. These adjustments are per- mitted when the trustee invests and man- ages the trust assets under the state’s pru- dent investor standard, the trust describes the amount that shall or must be distrib- uted to a beneficiary by referring to the trust’s income, and the trustee after apply- ing the state statutory rules regarding allo- cation of income and principal is unable to administer the trust impartially. In ad- dition, an allocation of capital gains to in- come will be respected if the allocation is made either pursuant to the terms of the governing instrument and local law, or pursuant to a reasonable and consistent exercise of a discretionary power granted to the fiduciary by local law or by the governing instrument, if not inconsistent with local law. Par. 5. In §1.651(a)–2, paragraph (d) is added to read as follows: §1.651(a)–2 Income required to be distributed currently. * * * * * (d) If a trust distributes property in kind as part of its requirement to distribute cur- rently all the income as defined under sec- tion 643(b) and the applicable regulations, the trust shall be treated as having sold the property for its fair market value on the date of distribution. If no amount in excess of the amount of income as defined under section 643(b) and the applicable regula- tions is distributed by the trust during the year, the trust will qualify for treatment under section 651 even though property in kind was distributed as part of a distribution of all such income. Par. 6. In §1.661(a)–2, paragraph (f) is revised to read as follows: §1.661(a)–2 Deduction for distributions to beneficiaries. * * * * * (f) Gain or loss is realized by the trust or estate (or the other beneficiaries) by reason of a distribution of property in kind if the distribution is in satisfaction of a right to receive a distribution of a spe- cific dollar amount, of specific property other than that distributed, or of income as defined under section 643(b) and the applicable regulations, if income is re- quired to be distributed currently. In ad- dition, gain or loss is realized if the trustee or executor makes the election to recognize gain or loss under section 643(e). Par. 7. In §1.664–3, paragraph (a)(1)(i)(b)(3) is revised to read as fol- lows: §1.664–3 Charitable remainder unitrust. (a) * * * (1) * * * (i) * * * (b) * * * (3) For purposes of this paragraph (a)(1)(i)(b), trust income generally means income as defined under section 643(b) and the applicable regulations. However, trust income may not be determined by reference to a fixed percentage of the an- nual fair market value of the trust prop- erty. If applicable state law provides that income is a unitrust amount, the trust’s governing instrument must contain its own definition of trust income. In addi- tion, capital gain attributable to apprecia- tion in the value of a trust asset after the date it was contributed to the trust or pur- chased by the trust may be allocated to in- come pursuant to applicable local law and the terms of the governing instrument but not pursuant to a discretionary power granted the trustee. * * * * * PART 20—ESTATE TAX; ESTATES OF DECEDENTS DYING AFTER AUGUST 16, 1954 Par. 8. The authority citation for part 20 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 9. Section 20.2056(b)–5 is amended by adding a new sentence to the end of paragraph (f)(1) to read as fol- lows: §20.2056(b)–5 Marital deduction; life estate with power of appointment in surviving spouse. * * * * * (f) * * * (1) * * * In addition, the sur- viving spouse’s interest shall meet the condition set forth in paragraph (a)(1) of this section, if the spouse is entitled to in- come as defined by a state statute that provides for a reasonable apportionment between the income and remainder bene- ficiaries of the total return of the trust and that meets the requirements of §1.643(b)–1 of the this chapter. * * * * * Par. 10. Section 20.2056(b)–7 is amended by adding a new sentence to the end of paragraph (d)(1) to read as follows: §20.2056(b)–7 Election with respect to life estate for surviving spouse. * * * * * (d) * * * (1) * * * A power under applic- able state law that permits the trustee to ad- just between income and principal to fulfill the trustee’s duty of impartiality between the income and remainder beneficiaries that meets the requirements of §1.643(b)–1 of this chapter will not be considered a power to appoint trust property to a person other than the surviving spouse. * * * * * Par. 11. Section 20.2056(b)–10 is amended by adding a new sentence at the end of the section to read as follows: §20.2056(b)–10 Effective dates. * * * In addition, the rule in the last sentence of §20.2056(b)–5(f)(1) and the rule in the last sentence of §20.2056(b)–7(d)(1) regarding the spouse’s right to income if the state statute provides for the reasonable appor- tionment between the income and remain- der beneficiaries of the total return of the trust are applicable with respect to trusts for taxable years that begin on or after the date that final regulations are published in the Federal Register. Par. 12. Section 20.2056A–5 is amended by adding a new sentence in April 16, 200110822001–16 I.R.B. paragraph (c)(2) after the third sentence to read as follows: §20.2056A–5 Imposition of section 2056A estate tax. * * * * * (c) * * * (2) * * * However, distributions made to the surviving spouse as the income beneficiary in conformance with applica- ble state law that defines the term income as a unitrust amount, or permits the trustee to adjust between principal and in- come to fulfill the trustee’s duty of impar- tiality between income and principal ben- eficiaries, will be considered distributions of trust income, if the state statute pro- vides for a reasonable apportionment be- tween the income and remainder benefi- ciaries of the total return of the trust and meets the requirements of §1.643(b)–1 of this chapter.* * * * * * * * Par. 13. Section 20.2056A–13 is re- vised to read as follows: §20.2056A–13 Effective dates. Except as provided in this section, the provisions of §§20.2056A–1 through 20.2056A–12 are applicable with respect to estates of decedents dying after August 22, 1995. The rule in the fourth sentence of §20.2056A–5(c) regarding unitrusts and distributions of income to the surviv- ing spouse in conformance with applica- ble state law that provides for the reason- able apportionment between the income and remainder beneficiaries of the total return of the trust is applicable with re- spect to trusts for taxable years that begin on or after the date that final regulations are published in the Federal Register. PART 25—GIFT TAX; GIFTS MADE AFTER DECEMBER 31, 1954 Par. 14. The authority citation for part 25 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 15. Section 25.2523(e)–1 is amended by adding a new sentence to the end of paragraph (f)(1) to read as follows: §25.2523(e)–1 Marital deduction; life estate with power of appointment in donee spouse. * * * * * (f) * * * (1) * * * In addition, the spouse’s interest shall meet the condition set forth in paragraph (a)(1) of this sec- tion, if the spouse is entitled to income as defined by a state statute that provides for a reasonable apportionment between the income and remainder beneficiaries of the total return of the trust and that meets the requirements of §1.643(b)–1(a) of this chapter. * * * * * Par. 16. Section 25.2523(h)–2 is amended by adding a new sentence to the end of the section to read as follows: §25.2523(h)–2 Effective dates. * * * In addition, the rule in the fourth sentence of §25.2523(e)–1(f)(1) regard- ing the spouse’s right to income if the state statute provides for reasonable ap- portionment between the income and re- mainder beneficiaries of the total return of the trust is applicable with respect to trusts and estates for taxable years that begin on or after the date the final regula- tions are published in the Federal Regis- ter. PART 26—GENERATION-SKIPPING TRANSFER TAX REGULATIONS UNDER THE TAX REFORM ACT OF 1986 Par. 17. The authority citation for part 26 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 18. Section 26.2601–1 is amended as follows: 1. Paragraph (b)(4)(i)(D)(2) is amended by adding a new sentence to the end of the paragraph. 2. Paragraph (b)(4)(i)(E) is amended by adding Examples 11and 12. 3. Paragraph (b)(4)(ii) is revised to read as follows. The additions and revisions read as fol- lows: §26.2601–1 Effective dates. * * * * * (b) * * * (4) * * * (i) * * * (D) * * * (2) * * * In addition, administration of a trust in conformance with applicable state law that defines the term income as a unitrust amount, or permits the trustee to adjust between principal and income to fulfill the trustee’s duty of impartiality be- tween income and principal beneficiaries, will not be considered to shift a beneficial interest in the trust, if the state statute pro- vides for a reasonable apportionment be- tween the income and remainder benefi- ciaries of the total return of the trust and meets the requirements of §1.643(b)–1 of this chapter. (E) * * * Example 11. Conversion of income interest to unitrust interest under state statute. In 1980, Grantor, a resident of State X, established an irrevo- cable trust for the benefit of Grantor’s child, A, and A’s issue. The trust provides that trust income is payable to Afor life and upon A’s death the remain- der is to pass to A’s issue, per stirpes. In 2002, State X amends its income and principal statute to define “income” as a unitrust amount of 4% of the fair mar- ket value of the trust assets valued annually. For a trust established prior to 2002, the statute provides that the new definition of income will apply only if all the beneficiaries who have an interest in the trust consent to the change within two years after the ef- fective date of the statute. The statute provides spe- cific procedures to establish the consent of the bene- ficiaries. Aand A’s issue consent to the change in the definition of income within the time period, and in accordance with the procedures, prescribed by the state statute. The administration of the trust, in ac- cordance with the state statute defining income to be a 4% unitrust amount, will not be considered to shift any beneficial interest in the trust. Therefore, the trust will not be subject to the provisions of chapter 13 of the Internal Revenue Code. Example 12. Equitable adjustments under state statute. The facts are the same as in Example 11, ex- cept that in 2002, State X amends its income and principal statute to permit the trustee to make equi- table adjustments between income and principal when the trustee invests and manages the trust assets under the state’s prudent investor standard, the trust describes the amount that shall or must be distrib- uted to a beneficiary by referring to the trust’s in- come, and the trustee after applying the state statu- tory rules regarding allocation of income and principal is unable to administer the trust impar- tially. The provision permitting the trustees to make these equitable adjustments is effective in 2002 for trusts created at any time. The trustee invests and manages the trust assets under the state’s prudent in- vestor standard, and pursuant to authorization in the state statute, the trustee allocates receipts between the income and principal accounts in a manner to en- sure the impartial administration of the trust. The administration of the trust in accordance with the state statute will not be considered to shift any bene- ficial interest in the trust. Therefore, the trust will not be subject to the provisions of chapter 13 of the Internal Revenue Code. (ii) Effective dates. The rules in this paragraph (b)(4) are applicable on and after December 20, 2000. However, the rule in the last sentence of paragraph (b)(4)(i)(D)(2) of this section regarding the administration of a trust in confor- 2001–16 I.R.B.1083April 16, 2001 mance with applicable state law providing for a reasonable apportionment between the income and remainder beneficiaries of the total return of the trust is applicable with respect to trusts for taxable years that begin on or after the date that final regula- tions are published in the Federal Regis- ter. * * * * * Robert E. Wenzel, Deputy Commissioner of Internal Revenue. (Filed by the Office of the Federal Register on Feb- ruary 14, 2001, 8:45 a.m., and published in the issue of the Federal Register for February 15, 2001, 66 F.R. 10396) Notice of Proposed Rulemaking and Notice of Public Hearing Treaty Guidance Regarding Payments With Respect to Domestic Reverse Hybrid Entities REG–107101–00 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemak- ing and notice of public hearing. SUMMARY: This document contains proposed regulations under section 894 of the Internal Revenue Code relating to the eligibility for treaty benefits of items of income paid by domestic entities that are not fiscally transparent under U.S. law but are fiscally transparent under the laws of the jurisdiction of the person claiming treaty benefits (a domestic reverse hybrid entity). The proposed regulations affect the determination of tax treaty benefits with respect to U.S. source income of for- eign persons. This document also pro- vides notice of a public hearing on these proposed regulations. DATES: Written or electronic com- ments must be received by May 28, 2001. Requests to speak (with outlines of oral comments to be discussed) at the public hearing scheduled for June 26, 2001, at 10 a.m., must be submitted by June 5, 2001. ADDRESSES: Send submissions to: CC:M&SP:RU (REG–107101–00), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand de- livered between the hours of 8 a.m. and 5 p.m. to: CC:M&SP:RU (REG–107101– 00), Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC. Alternatively, taxpayers may submit comments electronically via the Internet by selecting the “Tax Regs” option on the IRS Home Page, or by sub- mitting comments directly to the IRS In- ternet site at http://www.irs.gov/tax_regs /regslist.html.The public hearing will be held in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW, Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the regula- tions, Elizabeth U. Karzon or Karen Rennie-Quarrie at (202) 622-3880; con- cerning submissions and the hearing, Guy R. Traynor at (202) 622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background On June 30, 1997, the IRS and Treasury issued temporary regulations (T.D. 8722, 1997–2 C.B. 81) in the Federal Register (62 FR 35673, as corrected at 62 FR 46876, 46877) under section 894 of the In- ternal Revenue Code relating to eligibility for benefits under income tax treaties for payments to certain entities. These regu- lations addressed, among other matters, the eligibility for treaty benefits of U.S. source payments made to domestic re- verse hybrid entities, concluding that treaty benefits were not available for such payments. A notice of proposed rulemak- ing (REG–104893–97, 1997–2 C.B. 646) cross-referencing the temporary regula- tions was also published in the same issue of the Federal Register(62 FR 35755). On July 3, 2000, the IRS and Treasury is- sued final regulations (T.D. 8889, 2000–30 I.R.B. 124), reaffirming the posi- tion taken in the temporary regulations with respect to payments made to domes- tic reverse hybrid entities. The final regu- lations, however, did not address the ques- tion of whether payments made by domestic reverse hybrid entities to their interest holders are eligible for treaty ben- efits. Section 1.894–1(d)(2)(ii) was re- served for further guidance on that issue. Explanation of Provisions These proposed regulations provide guidance with respect to the previously reserved paragraph. They provide rules on the character of such payments for treaty purposes and the extent to which such payments are eligible for a reduced rate of U.S. tax under a U.S. income tax treaty. The use of domestic reverse hy- brid entities may give rise to inappropri- ate and unintended results under income tax treaties, such as double non-taxation or double taxation, unless the income tax treaties are interpreted to resolve the con- flict of laws. These regulations provide guidance regarding how to apply U.S. in- come tax treaties under these circum- stances. Section 1.894–1T(d)(3) provided guid- ance on the appropriate treatment of items of income paid to a domestic reverse hy- brid entity. That section provided that §1.894–1T(d)(1) may not be applied to reduce the amount of Federal income tax on U.S. source income received by a do- mestic reverse hybrid entity through ap- plication of an income tax treaty. Thus, neither the domestic reverse hybrid entity nor its interest holders could claim a re- duction under an income tax treaty with respect to a payment to a domestic reverse hybrid entity, notwithstanding that the in- terest holder might otherwise derive the income as a resident of a treaty jurisdic- tion under §1.894–1T(d)(1). The ratio- nale for the rule was the U.S. tax treaty principle that the United States retains taxing jurisdiction over items of U.S. source income paid to its residents. The final regulations published in the Federal Registeron July 3, 2000, retain the rule that a domestic reverse hybrid entity re- mains subject to the taxing jurisdiction of the United States on U.S. source pay- ments, but reserve with respect to the treatment of payments made by domestic reverse hybrid entities. Commentators on the previously issued temporary and proposed regulations noted that it was unclear how items of income paid by a domestic reverse hybrid entity to its interest holders should be treated. In particular, the general rule contained in §1.894–1T(d)(1) required the item of income to be “received by” a person resi- dent in a treaty jurisdiction and for that item of income to be “subject to tax” in the hands of the person deriving the item April 16, 200110842001–16 I.R.B. of income. Commentators expressed con- cern that an item of income paid by a do- mestic reverse hybrid entity could be viewed as neither “received by” the inter- est holder nor “subject to tax” because the interest holder’s jurisdiction treats the do- mestic reverse hybrid entity as fiscally transparent. The interest holder’s juris- diction views the interest holder as “re- ceiving” the items of income paid to the domestic reverse hybrid entity and as being “subject to tax” on those items of income on an immediate basis. The inter- est holder’s jurisdiction does not recog- nize the items of income paid by the do- mestic reverse hybrid entity to the interest holder. Based on this analysis, commen- tators questioned whether the items of in- come paid by the domestic reverse hybrid entity to an interest holder in that entity would be subject to a 30-percent tax under the Code. The IRS and Treasury believe similar questions may also arise under the recently issued final regula- tions. Accordingly, these proposed regula- tions provide rules on the treatment of payments made by domestic reverse hy- brid entities. Paragraph (d)(2)(ii) of this section provides a general rule that an item of income paid by a domestic reverse hybrid entity to an interest holder shall be characterized under U.S. tax law. This means that U.S. tax principles are first ap- plied to characterize the item of income paid by the domestic reverse hybrid entity to the interest holder for purposes of ap- plying an applicable income tax treaty provision. Once the item of income is so characterized, it is necessary to determine if the interest holder derives the item of income. In determining whether the in- terest holder derives the item of income, paragraph (d)(2)(ii)(A) of this section provides a special rule for determining whether the interest holder is fiscally transparent with respect to the item of in- come. Under that rule, whether the inter- est holder is fiscally transparent with re- spect to the item of income for purposes of §1.894–1(d)(3)(ii) is made based on the treatment that would have resulted had the item of income been paid by an entity that was not fiscally transparent under the laws of the interest holder’s ju- risdiction with respect to any item of in- come. Accordingly, if the interest holder is not fiscally transparent, then it will be considered to have derived the item of in- come, even if, for example, the item of in- come were characterized differently or treated as received at an earlier date under the laws of the interest holder’s jurisdic- tion than the item of income paid by the domestic reverse hybrid entity. The IRS and Treasury have learned, however, that domestic reverse hybrid en- tities are being established by related par- ties to manipulate differences in U.S. and foreign entity classification rules to re- duce inappropriately the amount of tax imposed on items of income paid from the United States to related foreign interest holders. In a typical scenario, a foreign investor, resident in a treaty jurisdiction, establishes a domestic reverse hybrid holding company with a combination of debt and equity contributions. The do- mestic reverse hybrid entity holds the stock of a wholly-owned U.S. operating company. The operating company pays a dividend to the domestic reverse hybrid entity, but the domestic reverse hybrid en- tity primarily pays interest to its foreign owner within the earning stripping limits of section 163(j). The foreign jurisdiction views the foreign owner as receiving divi- dends, but the United States views the do- mestic reverse hybrid entity as receiving the dividends and making deductible in- terest payments. In circumstances when the income tax treaty between the United States and the applicable foreign jurisdic- tion applies a zero withholding rate on in- terest and a 5-percent rate on related party dividends, the domestic reverse hybrid entity treats its payment to the foreign owner as an interest payment and the for- eign owner avoids the withholding tax on the dividends that its jurisdiction treats it as receiving. In addition, the domestic re- verse hybrid entity receives the benefit of an interest deduction in the United States while the foreign interest holder receives either a tax credit or exclusion on the div- idend amount in its jurisdiction. The IRS and Treasury believe that it is inappropriate for related parties to use do- mestic reverse hybrid entities for the pur- pose of converting higher taxed U.S. source items of income to lower taxed, or untaxed, U.S. source items of income. To do so defeats the expectation of the United States and its treaty partners that treaties should be used to reduce or elimi- nate double taxation for legitimate trans- actions, not to reward the manipulation of inconsistencies in the laws of the treaty partners. The legislative history of sec- tion 894(c) supports this analysis. Con- gress specifically expressed its concern about the potential tax avoidance opportu- nities available for foreign persons that invest in the United States through hybrid entities that are designed to avoid both U.S. and foreign income taxes. See H.R. Conf. Rep. No 220, 105th Cong, 1st Sess. 573 (1997); Joint Committee on Taxation, 105th Cong., 1st Sess., General Explana- tion of Tax Legislation Enacted in 1997 (JCS–23–97), at 249 (December 17, 1997). The approach contained in §1.894–1(d)(2), as revised, is also consis- tent with the general tax treaty principle that contracting states may adopt provi- sions in their domestic laws to counter structures and transactions intended to take advantage of the differences in the tax laws of the contracting states. See Commentaries to Article 1 of The 1998 OECD Model Tax Convention on Income and Capital; S. Rep. No. 445, 100th Cong. 2d Sess. 322–23 (1988) The IRS and Treasury are further con- cerned by the ability of foreign acquiring entities to obtain tax advantaged financ- ing through domestic reverse hybrid enti- ties by exploiting differences between U.S. and foreign law. Such financing un- fairly disadvantages similarly situated U.S. domestic acquiring entities. Con- gress has expressed concern about the use of analogous hybridized structures that were effected to provide foreign acquiring entities with tax advantaged acquisition financing not available to similarly situ- ated domestic companies. See Joint Committee on Taxation, 100th Congress, 1st Sess., General Explanation of the Tax Reform Act of 1986 (JCS–10–87), at 1064, 1065 (May 4, 1987). For these reasons, the proposed regula- tions provide a special rule in paragraph (d)(2)(ii)(B) of the regulations, such that if: (1) a domestic entity makes a payment to a related domestic reverse hybrid en- tity that is considered to be a dividend ei- ther under the laws of the United States or under the laws of the jurisdiction of a related foreign interest holder in the do- mestic reverse hybrid entity, and the re- lated foreign interest holder is treated as deriving its proportionate share of the payment to the domestic reverse hybrid 2001–16 I.R.B.1085April 16, 2001 entity under the laws of the related for- eign interest holder’s jurisdiction; and (2) the domestic reverse hybrid entity makes a payment to the related foreign interest holder of a type that is deductible for U.S. tax purposes and for which a reduc- tion in the U.S. withholding tax rate would be allowed under the general rule, but for this exception, then to the extent the amount of the payment by the domes- tic reverse hybrid entity to the related for- eign interest holder does not exceed the total amount of the interest holder’s pro- portionate share of any payments by the domestic entity to the domestic reverse hybrid entity treated as dividends under either jurisdiction’s laws, the payment by the domestic reverse hybrid entity shall be treated as a dividend for all purposes of the Code and the applicable income tax treaty. For purposes of determining the amount of the payment from the domes- tic reverse hybrid entity to the related for- eign interest holder to be recharacterized as a dividend, the portion of the pay- ments treated as derived by the related foreign interest holder shall be reduced by the amount of any prior actual divi- dend payments, under U.S. law, made by the domestic reverse hybrid entity to the related foreign interest holder and by the amount of any payments from the domes- tic reverse hybrid entity to the related for- eign interest holder previously recharac- terized under this special rule. The tax withheld from the payment from the do- mestic reverse hybrid entity to the related foreign interest holder shall be deter- mined based on the appropriate rate of withholding that would be applicable to dividends paid by the domestic reverse hybrid entity to the related foreign inter- est holder under the U.S. treaty with the related foreign interest holder’s jurisdic- tion had that jurisdiction viewed the do- mestic reverse hybrid entity as not fis- cally transparent. Because any payment subject to the provisions of this special rule is treated as a dividend for all pur- poses of the Code and the applicable treaty, the domestic reverse hybrid entity will not be able to claim a deduction on the payment to the related foreign interest holder. The regulations provide an 80% own- ership test to determine if the parties are related to one another and a special rule that treats accommodation parties as re- lated foreign interest holders. The fore- going rules also apply to recharacterize payments when more than one domestic reverse hybrid entity or other fiscally transparent entity is involved. The proposed regulations further pro- vide that a taxpayer may not affirma- tively use the rules of paragraph (d)(2) of this section if a principal purpose for using such rules is the avoidance of any tax imposed by the Code. Thus, with re- spect to such a taxpayer, the Commis- sioner may depart from the rules of this section and recharacterize (for all pur- poses of the Code) the arrangement in ac- cordance with its form or its economic substance. The regulations further pro- vide that, if a taxpayer enters into an arrangement the effect of which is to cir- cumvent the principles of this paragraph (d)(2), the Commissioner may recharac- terize (for all purposes of the Code) the arrangement in accordance with the prin- ciples of this paragraph (d)(2). Comments are requested on potential rules with respect to transaction when the domestic reverse hybrid entity is sold to unrelated parties who later receive distri- butions. Proposed Effective Dates These proposed regulations apply to items of income paid by a domestic re- verse hybrid entity on or after the date these regulations are published as final regulations in the Federal Registerwith respect to amounts received by the do- mestic reverse hybrid entity on or after the date these regulations are published as final regulations in the Federal Regis- ter. No inference is intended as to the treatment of transactions entered into prior to the date of applicability of the final regulations. Special Analysis It has been determined that this notice of proposed rulemaking is not a signifi- cant regulatory action as defined in Exec- utive Order 12866. Therefore, a regula- tory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because these regula- tions do not impose on small entities a collection of information requirement, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not re- quired. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Ad- ministration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, considera- tion will be given to any written com- ments (preferably a signed original and eight (8) copies) that are submitted timely to the IRS. The IRS and Treasury Department specifically request com- ments on the clarity of the proposed regu- lations and how they can be made easier to understand. All comments will be available for public inspection and copy- ing. A public hearing has been scheduled for June 26, 2001, at 10 a.m. in the audi- torium, Internal Revenue Building, 1111 Constitution Avenue, NW, Washington, DC. Because of access restriction, visi- tors will not be admitted beyond the In- ternal Revenue Building lobby more than 15 minutes before the hearing starts. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons that wish to present oral com- ments at the hearing must submit written comments by May 28, 2001, and submit an outline of the topics to be discussed and the time to be devoted to each topic (preferably a signed original and eight (8) copies) by June 5, 2001. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal author of these regula- tions is Shawn R. Pringle of the Office of the Associate Chief Counsel (Interna- tional). However, other personnel from the IRS and Treasury Department partici- pated in their development. * * * * * April 16, 200110862001–16 I.R.B. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is pro- posed to be amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.894–1(d)(2) also issued under 26 U.S.C. 894 and 7701(l).* * * Par. 2. In §1.894–1, paragraph (d)(2)(ii) is revised and paragraphs (d)(2)(iii) and (d)(2)(iv) are added to read as follows: §1.894–1 Income affected by treaty. * * * * * (d) * * * (2) * * * (ii) Payments by domestic reverse hy- brid entities—(A) General rule. Except as otherwise provided in paragraph (d)(2)(ii)(B) of this section, an item of in- come paid by a domestic reverse hybrid entity to an interest holder in such entity shall have the character of such item of income under U.S. law and shall be con- sidered to be derived by the interest holder, provided the interest holder is not fiscally transparent in its jurisdiction, as defined in paragraph (d)(3)(iii) of this section, with respect to the item of in- come. In determining whether the inter- est holder is fiscally transparent with re- spect to the item of income under this paragraph (d)(2)(ii)(A), the determination under paragraph (d)(3)(ii) of this section shall be made based on the treatment that would have resulted had the item of in- come been paid by an entity that is not fis- cally transparent under the laws of the in- terest holder’s jurisdiction with respect to any item of income. (B) Payment made to related foreign interest holder—(1) General rule. If— (i) A domestic entity makes a payment to a related domestic reverse hybrid entity that is treated as a dividend under either the laws of the United States or the laws of the jurisdiction of a related foreign in- terest holder in the domestic reverse hy- brid entity, and under the laws of the ju- risdiction of the related foreign interest holder in the domestic reverse hybrid en- tity, the related foreign interest holder is treated as deriving its proportionate share of the payment under the principles of paragraph (d)(1) of this section; and (ii) The domestic reverse hybrid entity makes a payment of a type that is de- ductible for U.S. tax purposes to the re- lated foreign interest holder and for which a reduction in the U.S. withholding tax rate would be allowed under paragraph (d)(2)(ii)(A) of this section but for this paragraph (d)(2)(ii)(B), then (iii) To the extent the amount of the payment described in paragraph (d)(2)(ii)(B)(1)(ii) of this section does not exceed the sum of the portion of the pay- ment described in paragraph (d)(2)(ii)(B)(1)(i) of this section treated as derived by the related foreign interest holder and the portion of any other prior payments described in paragraph (d)(2) (ii)(B)(1)(i) of this section treated as de- rived by the related foreign interest holder, the amount of the payment de- scribed in (d)(2)(ii)(B)(1)(ii) of this sec- tion will be treated for all purposes of the Internal Revenue Code and the applicable income tax treaty as a dividend, and the tax to be withheld from the payment de- scribed in paragraph (d)(2)(ii)(B)(1)(ii) of this section shall be determined based on the appropriate rate of withholding that would be applicable to dividends paid from the domestic reverse hybrid entity to the related foreign interest holder under the U.S. treaty with the related foreign in- terest holder’s jurisdiction had that juris- diction viewed the domestic reverse hy- brid entity as not fiscally transparent; and (iv) For purposes of determining the amount to be recharacterized under para- graph (d)(2)(ii)(B)(1)(iii) of this section, the portion of the payments described in paragraph (d)(2)(ii)(B)(1)(i) of this sec- tion treated as derived by the related for- eign interest holder shall be reduced by the amount of any prior actual dividend payments made by the domestic reverse hybrid entity to the related foreign interest holder and by the amount of any pay- ments from the domestic reverse hybrid entity to the related foreign interest holder previously rechacterized under paragraph (d)(2)(ii)(B)(1)(iii) of this section. (2) Tiered entities. The principles of this paragraph (d)(2)(ii)(B) shall also apply to payments referred to in this para- graph (d)(2)(ii)(B) made among related entities when there is more than one do- mestic reverse hybrid entity or other fis- cally transparent entities involved. (3) Definition of related. Related shall mean any entity satisfying the ownership requirements of section 267(b) or 707(b)(1), except that 80 percent shall be substituted for 50 percent. For purposes of determining whether a person is related to another person, the constructive owner- ship rules of section 318 shall apply, and the attribution rules of section 267(c) also shall apply to the extent they attribute ownership to persons to whom section 318 does not attribute ownership. If a person enters into a transaction (or series of transactions) with the domestic reverse hybrid entity, its related interest holders, or its related entities, and the effect of the transaction (or series of transaction) is to avoid the principles of this paragraph (d)(2)(ii)(B), then that person shall be treated as related to the domestic reverse hybrid entity for purposes of this section. (C) Commissioner’s discretion. The Commissioner may, as the Commissioner determines to be appropriate, recharacter- ize for all purposes of the Internal Rev- enue Code all or part of any transaction (or series of transactions) between related parties if the effect of the transaction (or series of transactions) is to avoid the prin- ciples of this paragraph (d)(2). (iii) Examples. The rules of this para- graph (d)(2) are illustrated by the follow- ing examples: Example 1. Treatment of payment by unrelated entity to domestic reverse hybrid entity. (i) Facts. Entity A is a domestic reverse hybrid entity, as de- fined in paragraph (d)(2)(i) of this section, with re- spect to the U.S. source dividends it receives from B, a domestic corporation to which A is not related, within the meaning of paragraph (d)(2)(ii)(B)(3) of this section. A’s 85-percent shareholder FC is a cor- poration organized under the laws of Country X, which has an income tax treaty in effect with the United States. Under Country X law, FC is not fis- cally transparent with respect to the dividend, as de- fined in paragraph (d)(3)(ii) of this section. In year 1, A receives a $100 of dividend income from B. Under Country X law, FC is treated as deriving $85 of the $100 dividend payment received by A. The applicable rate of tax on dividends under the U.S.- Country X income tax treaty is 5 percent with re- spect to a 10-percent or more corporate shareholder. (ii) Analysis. Under paragraph (d)(2)(i) of this section, the U.S.-Country X income tax treaty does not apply to the dividend income received by A be- cause the income is paid by B, a domestic corpora- tion, to A, another domestic corporation. A remains fully taxable under the U.S. tax laws as a domestic corporation with regard to that item of income. Fur- ther, pursuant to paragraph (d)(2)(i) of this section, notwithstanding the fact that under the laws of Coun- try X A is treated as fiscally transparent with respect 2001–16 I.R.B.1087April 16, 2001 to the dividend income, FC may not claim a reduced rate of taxation on its share of the U.S. source divi- dend income received by A. Example 2. Treatment of payment by domestic re- verse hybrid entity to related foreign interest holder involving unrelated party. (i) Facts. The facts are the same as in Example 1. Both the United States and Country X characterize the payment by B in year 1 as a dividend. In addition, in year 2, A makes a payment of $25 to FC that is characterized under U.S. tax laws as an interest payment to FC on a loan from FC to A. Under the U.S.-Country X income tax treaty, the rate of tax on interest is zero. Under Country X laws, had the interest been paid by an en- tity that is not fiscally transparent under Country X’s laws with respect to any item of income, FC would not be fiscally transparent as defined in paragraph (d)(2)(ii) of this section with respect to the interest. (ii) Analysis. The analysis is the same as in Exam- ple 1with respect to the $100 payment from B to A. With respect to the $25 payment from A to FC, para- graph (d)(2)(ii)(B) of this section will not apply be- cause, although FC is related to A, A is not related to the payor of the dividend income it received. Under paragraph (d)(2)(ii)(A) of this section, the $25 interest income paid from A to FC in year 2 will be character- ized under U.S. law as interest . Accordingly, in year 2, FC may obtain the reduced rate of withholding ap- plicable to interest under the U.S.-Country X income tax treaty, assuming all other requirements for claim- ing treaty benefits are met. Example 3. Treatment of payment by domestic re- verse hybrid entity to related foreign interest holder. (i) Facts. The facts are the same as in Example 2, ex- cept the $100 dividend income received by A in year 1 is from A’s wholly owned subsidiary S. (ii) Analysis. The analysis is the same as in Ex- ample 1with respect to the $100 dividend payment from S to A. However, the $25 interest payment in year 2 by A to FC will be treated as a dividend for all purposes of the Internal Revenue Code and the U.S.- Country X income tax treaty because $25 does not exceed FC’s share of the $100 dividend payment made by S to A ($85). Since FC is not fiscally trans- parent with respect to the payment as determined under paragraph (d)(2)(ii)(A) of this section, FC will be entitled to obtain the reduced rate applicable to dividends under the U.S.-Country X income tax treaty with respect to the $25 payment. Because the $25 payment in year 2 is recharacterized as a divi- dend for all purposes of the Internal Revenue Code and the U.S.-Country X income tax treaty, A would not be entitled to an interest deduction with respect to that payment and FC would not be entitled to claim the reduced rate of withholding applicable to interest. (iv) Effective date. This paragraph (d)(2) applies to items of income paid by a domestic reverse hybrid entity on or after the date these regulations are pub- lished as final regulations in the Federal Registerwith respect to amounts re- ceived by the domestic reverse hybrid en- tity on or after the date these regulations are published as final regulations in the Federal Register. * * * * * Robert E. Wenzel, Deputy Commissioner of Internal Revenue. (Filed by the Office of the Federal Register on Feb- ruary 26, 2001, 8:45 a.m., and published in the issue of the Federal Register for February 27, 2001, 66 FR 12445) U.S.— Korean Agreement Announcement 2001–34 On June 23, 1999, the Internal Revenue Service and the Korean Ministry of Fi- nance and Economy entered into a mutual agreement pursuant to Article 27 of the U.S. – Republic of Korea Income Tax Convention regarding gains from the dis- position of shares of certain Korean real property corporations by U.S. persons. Under the Individual Income Tax Act and Corporate Income Tax Act of Korea, the income from the disposition of shares of a corporation are treated as derived from the transfer of real property if three conditions are met. The three conditions that must exist are: (1) that the value of the real property held by the corporation in the country equals or exceeds 50 per- cent of the value of all the property held by the corporation; (2) that the share- holder (and related parties) hold at least 50 percent of the shares of the corpora- tion; and (3) that the shareholder transfers at least 50 percent of the corporation. Korea treats the income attributable to the gain on such transfers of a Korean corpo- ration as Korean source, for both nonresi- dent aliens and foreign corporations. The U.S. and Korea have agreed that gains derived from the disposition of shares of such a Korean corporation would be sourced in the situscountry of the real property in order to prevent dou- ble taxation for purposes of Article 6(9) and Article 27(2)(9)(c) of the Convention. Foundations Status of Certain Organizations Announcement 2001–35 The following organizations have failed to establish or have been unable to maintain their status as public charities or as operating foundations. Accordingly, grantors and contributors may not, after this date, rely on previous rulings or des- ignations in the Cumulative List of Orga- nizations (Publication 78), or on the pre- sumption arising from the filing of notices under section 508(b) of the Code. This listing does notindicate that the organiza- tions have lost their status as organiza- tions described in section 501(c)(3), eligi- ble to receive deductible contributions. Former Public Charities.The following organizations (which have been treated as organizations that are not private founda- tions described in section 509(a) of the Code) are now classified as private foun- dations: Acceptance Communications Network, Edgewood, NM Adams-Johnson Community Outreach, Inc., Fayetteville, NC Adopt A Horse Program, Inc., Palermo, ME Afterschool Publishing Company, Inc., Detroit, MI Agape Youth Homeless Ministry Circuit, Decatur, GA Alleghany Foundation, Covington, VA Allman, Inc., Fresno, CA Almobarak Cultural Center, Hot Springs, AR American Elite Runners, Inc., Alamogordo, NM American Friends of the Institute of Advocacy Training, Inc., New York, NY American Opera Company, Inc., Centerville, UT American Sign Language Resource Corp., Marietta, GA Animal Aid Association, Inc., Springfield, VA Animal League of Nevada, Las Vegas, NV Another Level, Montclair, CA Arizona Equal Justice Foundation, Phoenix, AZ Army Retirement Residence Foundation Potomac, Fort Belvoir, VA As He Is Ministries, Inc., Knoxville, TN Association for the Historic Restoration and Preservation of Lives, Jamaica, NY Atlantic Health Services, Inc., Lynwood, CA Attica Housing Development Fund Company, Inc., Buffalo, NY Avec Amis With Friends, Inc., Orlando, FL Babycare, Inc., Colorado Springs, CO April 16, 200110882001–16 I.R.B. Baltimore Senior Care, Inc., Baltimore, MD Barkley Art Center, Inc., Annandale, MN BECU Foundation, Tukwila, WA Bolshoi Ballet and Opera Foundation, Inc., New York, NY Bright Path, Inc., West Newbury, MA Calls for Help Foundation, Fullerton, CA Caloptima Health Partnership, Orange, CA Cameron Cunningham Foundation, Oakwood, IL Carmel Health Network, Mobile, AL Carol and Arnold Wolowitz Foundation, Inc., Hauppauge, NY Casa de Milagro, Inc., McKinney, TX Central Oregon District Hospital Foundation, Inc., Redmond, OR Changing Perspectives, Inc., Mount Kisco, NY Charles E. Peterson Institute for Preservation of French Heritage, Ste Genevieve, MO Cherith Ministries, Inc., Fayetteville, GA Children’s Enrichment Program, Los Angeles, CA Christ House, Inc., Chi, Temple Hills, MD Citizens for Humane Animal Treatment, Inc., Ellicott, NY Cleveland Forum for the Arts, Inc., Cleveland, OH Cochise Center for the Blind and Visually Impaired, Hereford, AZ Cohasset Conservation Trust, Inc., Cohasset, MA Community Revitalization Foundation, Inc., Baltimore, MD Community Threads, Columbus, OH Concerned Coaches & Athletes Against Drugs, Sedona, AZ Connecticut Professional Society on the Abuse of Children, Inc., New Haven, CT Contemporary Dance Company of Boca Raton, Inc., Boca Raton, FL Copper Communities Housing Corporation, Kearney, AZ Creative Resources Network, Inc., Bonner Springs, KS Dance Et Vous, Mesquite, TX David J. Patterson Institute for the Advancement of Ethics, Inc., Missoula, MT Deacon & Brothers Foundation, Bryan, TX Delavan Historic Foundation, Inc., Delavan, WI Detriot Three Dimensional Community Development Corporation, Detroit, MI Donna P. Jackson Ministries, Inc., Tulsa, OK Dr. Grover C. Hunter University of North Carolina Dental Trust Fund, Atlanta, GA Educational Association for Family Child Care, Inc., Lodi, NJ Edutech Fideiicomiso Educativo P T, Bayamon, PR Electronic Alexandria Community Forum, Alexandria, VA Elishama Imbi Timbwa Memorial Merit Scholarship Award, Inc., New York, NY Emerald Eyes Children’s Foundation, Sherman Oaks, CA Encore Chamber Music Society, Ltd., Jersey City, NJ FAHD Foundation, Monroe, MI Families United of Iowa, Ames, IA Far and Away Missions, Inc., Florence, KY Farm Relief Fund, Inc., of Wisconsin, Marshfield, WI Father Paul Wolf Foundation, Winsted, MN First African Housing Development Corporation at Darby Township, Sharon Hill, PA Fishers of Men Ministries, Fairfield, OH Food Closet of the Isaiah 58, Modesto, CA Fort Hill Housing Development Fund Company, Inc., Rochester, NY Foundation for Musculoskeletal Research and Education, Little Rock, AR Foundation for O.C. Private School Opportunities, Inc., Anaheim, CA Four H International Ministries, Corp., Hayden, ID Friends of Hill-Stead, Inc., Farmington, CT Friends of Son Shine Ministries Foundation, Corpus Christi, TX Gerald Hanus Share the Spirit Scholarship, Omaha, NE Gift of Green, Branson, MO Gods Temple, St. Louis, MO Grace Harbour Ministries, Inc., Bois Darc, MO Grace HOPE Development Corporation, Baltimore, MD Grand Valley Beautification Council, Grand Junction, CO Great American Flag Association, Inc., Largo, FL Gulf Marine Institute of Technology, Gulf Breeze, FL Hands Extended Ministries, Inc., Maple Grove, MN Happy Voice, Inc., Medford, OR Hasbrouck Family Association, Inc., New Paltz, NY Hawaii Society for Prevention of Cruelty to Children & Animals, Pahoa, HI Henry E. Hardin Education Fund, Inc., South Plainfield, NJ Hidden Ponds Foundation, Inc., Larchmont, NY Hire a Teen for a Brighter Tomorrow, Park Forest, IL Homeland of the Heart School, Olivia, MN Institute for Health Care Research, Inc., Hialeah, FL Institute for Health Improvement in Southeast Michigan, Southfield, MI International Foundation for the Conservation of Natural Resources, Vienna, VA Irish and American Repertory Theatre, Inc., Columbus, OH Jeff Colby Charitable Foundation, Long Beach, IN Keren Tefert Yaacov, Monsey, NY Kids With Special Needs Day Care Center, Buffalo, NY King of Glory Ministries, Inc., Avondale, AZ L.A.M.B., Inc., Baltimore, MD Lancaster Love, Inc., Lititz, PA Legacy Ministries, Inc., California, MO Liaison of Arkansas, Inc., Nashville, TN Liechty-Windows Family Organization, Provo, UT Life Care Management Services, Inc., St. Petersburg, FL Light Years, LTD., Bayfield, CO Lindstrom Foundation for Archaeological Research & Development, San Leandro, CA Lov A Second Chance Foundation, Bois Darc, MO Luci Di Speranza A New Jersey Non-Profit Corporation, West Long Branch, NJ MARIA Multi-Behavioral Autism Rehabilitation & Intervention Assn., Eugene, OR McMastersville Village Volunteer Fire Department, Ann Arbor, MI Medical Research Scholarship Foundation, St. Louis, MO Memphis Rock-N-Soul, Inc., Memphis, TN 2001–16 I.R.B.1089April 16, 2001 Men Against Breast Cancer, Inc., Hollywood, FL Menemsha Pond Preservation Trust, Inc., Boston, MA Mentor and Associated Services, Robbinsdale, MN Ministry of Love, Sterling Heights, MI Mount Zion Non-Profit Housing Corporation, Detroit, MI Native Fish Society, Inc., Portland, OR Ndigbo Development Foundation, Inc., New Orleans, LA Neighborhood Rehabilitation Center, Inc., Arlington, TX Net Ministries, Inc., Carrollton, TX Newcorp, Inc., New Orleans, LA New Pisgah Haven Homes, Ltd., Chicago, IL Noble African American Boys, Inc., Atlanta, GA North American Community Health Foundation, Inc., Jackson, MS North Las Vegas Chamber of Commerce Foundation, N. Las Vegas, NV Northeast Commonworks, Inc., Newbury, MA Northside Plaza, Inc., Houston, TX Northwest Endurance Center, Bend, OR Nutrition Art Music and Technology Therapy, Inc., Washington, DC Oh-Za-H-Dah-Zay-Lee, Inc., Lapwai, ID Omaha Volunteers for Handicapped Children, Omaha, NE Omega Point Foundation, Portland, OR Omega Psi Phi Development Corp., Decatur, GA Oregonians for Environmental Rights, Sisters, OR Out Reach Ministries Community Street Ministries, Ft. Lauderdale Lakes, FL Oz Nidberu Trust, Brooklyn, NY Phoenix Development, Inc., Memphis, TN Pikes Peak Minority Business Foundation, Colorado Springs, CO Pioneering Partners Foundation, Inc., Noblesville, IN PLAY, Grass Valley, CA Positive People, Inc., Chicago, IL Pride Foundation, Inc., Banks, AL Pride of the Carolina’s, Incorporated, Manchester, NH Raksha, Inc., Atlanta, GA Ralph and Billie Howard Foundation for Scholarship and Technology, Tyler, TX Red Arce Farm, Inc., Stow, MA Reflections A True Gospel Ministry, Stockton, CA Richland Affordable Housing Corporation, Sidney, MT Roanoke Chowan Foundation, Inc., Ahoskie, NC Rogue Wave Foundation, Boulder, CO Ronald McDonald House Charities of South Dakota, Inc., Sioux Falls, SD Rowlett Animal Adoption Center, Fort Worth, TX Rural School and Community Trust, Washington, DC Safety & Firearms Education, Inc., Westbury, NY Saint Martin’s Place, Hazelton, PA Seek & Save Ministries, Inc., Thurmont, MD Shade for the Children, Black Hawk, SD Shiloh Development for Community Home Care, Inc., Fayetteville, NC Solutions An Education and Mediation Project, Laguna Niguel, CA South Central Pennsylvania Sickle Cell Council, Harrisburg, PA Southwest Academy for Conservation and Ecology, Forest Falls, CA Spectrum Delta, Inc., Tinley Park, IL Spirit of Truth Ministry, Columbus, OH Sport Education and Values Foundation, Salt Lake City, UT Springhill Community Childcare Center, Inc., Gainesville, FL St. Francis County Family Resources, Inc., Forrest City, AZ Steps, Inc., Winchester, IN Syracuse Rescue Mission Foundation, Inc., Syracuse, NY Tewksbury Ice Arena Authority, Inc., Tewskbury, MA Thorntown Businessmen’s Educational Foundation, Inc., Lebanon, IN Tjo Fowroe-Haven Homes, Escondido, CA To Life Foundation, Woodcliff Lakes, NJ Toledo Homes, Inc., Toledo, OH Townsmen Jazz Orchestra, Bedford Hts., OH Treme Community Education Program, Inc., New Orleans, LA Tri-Counties Special Services, Inc., Hopkinsville, KY Trulove Charities for the Promotion of Family Literacy, Champaign, IL Union Street Foundation, Decatur, IL United Communal Services Foundation, Los Angeles, CA United Debt Counseling, Inc., Wilmington, DE Uplift Foundation, New York, NY US Friends of English National Opera, Inc., Minneapolis, MN Vallecito Schools Foundation, Avery, CA Viarts, Providence, RI Victory Lakes Village, Waukegan, IL Voice of Youth, Seattle, WA Washington Metropolitan Area Affiliate of the American Geriatrics Society, Takoma Park, MD Wilson-Fleetwood Development Foundation, Alton, IL Womanhood, Inc., Detroit, MI Women in Need of Growth Services, Inc., Naples, FL World Against Racism Foundation, Washington, DC World Dance Day Foundation, Monterey Park, CA Worldpeace Communities, St. Paul, MN If an organization listed above submits information that warrants the renewal of its classification as a public charity or as a private operating foundation, the Internal Revenue Service will issue a ruling or de- termination letter with the revised classi- fication as to foundation status. Grantors and contributors may thereafter rely upon such ruling or determination letter as pro- vided in section 1.509(a)–7 of the Income Tax Regulations. It is not the practice of the Service to announce such revised clas- sification of foundation status in the Inter- nal Revenue Bulletin. Deletions From Cumulative List of Organizations Contributions to Which are Deductible Under Section 170 of the Code Announcement 2001–36 The name of an organization that no longer qualifies as an organization de- scribed in section 170(c)(2) of the Internal Revenue Code of 1986 is listed below. Generally, the Service will not disallow deductions for contributions made to a listed organization on or before the date of announcement in the Internal Revenue Bulletin that an organization no longer qualifies. However, the Service is not precluded from disallowing a deduction for any contributions made after an orga- nization ceases to qualify under section 170(c)(2) if the organization has not timely filed a suit for declaratory judg- ment under section 7428 and if the con- April 16, 200110902001–16 I.R.B. tributor (1) had knowledge of the revoca- tion of the ruling or determination letter, (2) was aware that such revocation was imminent, or (3) was in part responsible for or was aware of the activities or omis- sions of the organization that brought about this revocation. If on the other hand a suit for declara- tory judgment has been timely filed, con- tributions from individuals and organiza- tions described in section 170(c)(2) that are otherwise allowable will continue to be deductible. Protection under section 7428(c) would begin on April 16, 2001, and would end on the date the court first determines that the organization is not de- scribed in section 170(c)(2) as more par- ticularly set forth in section 7428 (c)(1). For individual contributors, the maximum deduction protected is $1,000, with a hus- band and wife treated as one contributor. This benefit is not extended to any indi- vidual, in whole or in part, for the acts or omissions of the organization that were the basis for revocation. Friends of High Point Drug Action Council, Inc., High Point, NC Interim Final Rules for Nondiscrimination in Health Coverage in the Group Market; Technical Amendment Announcement 2001-37 AGENCIES: Internal Revenue Service, Department of the Treasury; Pension and Welfare Benefits Administration, Depart- ment of Labor; Health Care Financing Administration, Department of Health and Human Services. ACTION: Interim final rules; delay of ef- fective date and conforming amendments. SUMMARY: Consistent with the memo- randum of January 20, 2001, from the As- sistant to the President and Chief of Staff, entitled “Regulatory Review Plan,” pub- lished in the Federal Registeron January 24, 2001 (66 FR 7702), this action delays for 60 days the effective date for the rules entitled “Interim Final Rules for Nondis- crimination in Health Coverage in the Group Market,” published in the Federal Registeron January 8, 2001 (66 FR 1378 [T.D. 8931, 2001–7 I.R.B. 542]). This document also makes conforming amend- ments to reflect the delay in effective date. DATES: The effective date of the Interim Final Rules amending 26 CFR Part 54, 29 CFR Part 2590, and 45 CFR Part 146, published in the Federal Registeron Jan- uary 8, 2001, at 66 FR 1378, is delayed for 60 days, from March 9, 2001, until May 8, 2001. The conforming amendments in this document are effective May 8, 2001. FOR FURTHER INFORMATION CON- TACT: Russ Weinheimer, Internal Rev- enue Service, Department of the Treasury, at (202) 622-6080; Amy J. Turner, Pen- sion and Welfare Benefits Administration, Department of Labor, at (202) 219-7006; or Ruth A. Bradford, Health Care Financ- ing Administration, Department of Health and Human Services, at (410) 786-1565. SUPPLEMENTARY INFORMATION: Consistent with the memorandum of January 20, 2001, from the Assistant to the President and Chief of Staff, entitled “Regulatory Review Plan,” published in the Federal Registeron January 24, 2001 (66 FR 7702), this action delays for 60 days the effective date and, for consis- tency, certain applicability dates for the rules entitled “Interim Final Rules for Nondiscrimination in Health Coverage in the Group Market,” published in the Fed- eral Registeron January 8, 2001 (66 FR 1378). These rules implement statutory provisions prohibiting discrimination based on a health factor by group health plans and issuers offering health insur- ance coverage in connection with a group health plan. The rules implement changes made to the Internal Revenue Code of 1986, the Employee Retirement Income Security Act of 1974, and the Public Health Service Act, enacted as part of the Health Insurance Portability and Account- ability Act of 1996 (HIPAA), and most of the guidance contained in these rules re- mains applicable for plan years beginning on or after July 1, 2001. This document also makes conforming amendments to reflect the delay in effective date. To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(3)(A). Alternatively, the Depart- ments’ implementation of this rule with- out opportunity for public comment, ef- fective immediately upon publication today (March 9, 2001) in the Federal Register, is based on the good cause ex- ceptions in 5 U.S.C. 553(b)(3)(B) and 553(d)(3), in that seeking public com- ment is impracticable, unnecessary, and contrary to the public interest. The 60- day delay in effective date is necessary to give Department officials the opportunity for further review and consideration of new regulations, consistent with the As- sistant to the President’s memorandum of January 20, 2001. Given the imminence of the effective date, seeking prior public comment on this delay would have been impractical, unnecessary, and contrary to the public interest in the orderly promul- gation and implementation of regula- tions. Because the delay is only for 60 days, a 30-day comment period before the delay could be effective would ex- haust a substantial amount of time that group health plans, health insurance is- suers, and State insurance commis- sioner’s offices could otherwise use to re- view their plan documents, insurance policies, and State laws for purposes of the orderly implementation of the interim regulations. In addition, it would create confusion among State agencies, employ- ers, plan administrators, issuers, and third party administrators as to the effective date of certain provisions, impeding their compliance and enforcement efforts List of Subjects 26 CFR Part 54 Excise taxes, Health care, Health insur- ance, Pensions, Reporting and record- keeping requirements. 29 CFR Part 2590 Employee benefit plans, Employee Re- tirement Income Security Act, Health care, Health insurance, Reporting and recordkeeping requirements. 45 CFR Part 146 Health care, Health insurance, Report- ing and recordkeeping requirements, and State regulation of health insurance. Conforming Amendments to the Regulations Internal Revenue Service 26 CFR Chapter I Accordingly, the publication on January 8, 2001, of the temporary and final rules, 26 CFR Part 54, is amended as follows: 2001–16 I.R.B.1091April 16, 2001 PART 54 — PENSION EXCISE TAXES Paragraph 1. The authority citation for part 54 continues to read in part as fol- lows: Authority: 26 U.S.C. 7805 * * * §54.9802–1 [Amended] Par. 2. Section 54.9802–1 is amended by removing the date “March 9, 2001” in each place it appears in paragraph (i)(1) and adding in its place “May 8, 2001”. §54.9802–1T [Amended] Par. 3. Section 54.9802–1T is amended by: 1. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(1). 2. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(3)(ii)(A) introductory text. 3. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(3)(ii)(C) Example 2(ii). Robert E. Wenzel, Deputy Commissioner of Internal Revenue. Approved March 2, 2001. Pamela F. Olsen, Deputy Assistant Secretary of the Treasury. Pension and Welfare Benefits Administration 29 CFR Chapter XXV For the reasons set forth above, the publication on January 8, 2001, of the interim final rule, 29 CFR Part 2590, is amended as follows: PART 2590 – RULES AND REGULATIONS FOR HEALTH INSURANCE PORTABILITY AND RENEWABILITY FOR GROUP HEALTH PLANS Paragraph 1. The authority citation for Part 2590 continues to read as follows: Authority:Secs. 107, 209, 505, 701–703, 711–713, and 731–734 of ERISA (29 U.S.C. 1027, 1059, 1135, 1171–1173, 1181–1183, and 1191–1194), as amended by HIPAA (Public Law 104–191, 110 Stat. 1936), MHPA and NMHPA (Public Law 104–204, 110 Stat. 2935), and WHCRA (Public Law 105–277, 112 Stat. 2681–436), section 101(g)(4) of HIPAA, and Secretary of Labor’s Order No. 1–87, 52 FR 13139, April 21, 1987. § 2590.702 [Amended] Par. 2. Section 2590.702 is amended by: 1. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in the heading to paragraph (i)(1). 2. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(1). 3. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(3)(ii)(A) introductory text. 4. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(3)(ii)(C) Example 2(ii). Signed at Washington, DC, this 16th day of February 2001. Alan D. Lebowitz, Acting Assistant Secretary, Pension and Welfare Benefits Administration, U.S. Department of Labor. Health Care Financing Administration 45 CFR Subtitle A For the reasons set forth above, the publication on January 8, 2001, of the interim final rule, 45 CFR Part 146, is amended as follows: PART 146 – RULES AND REGULATIONS FOR HEALTH INSURANCE PORTABILITY AND RENEWABILITY FOR GROUP HEALTH PLANS Paragraph 1. The authority citation for Part 146 continues to read as follows: Authority:Secs. 2701 through 2763, 2791 and 2792 of the Public Health Ser- vice Act, 42 U.S.C. 300gg through 300gg–63, 300gg–91, 300gg–92 as amended by HIPAA (Public Law 104–191, 110 Stat. 1936), MHPA and NMHPA (Public Law 104–204, 110 Stat. 2935), and WHCRA (Public Law 105–277, 112 Stat. 2681–436), and sec- tion 102(c)(4) of HIPAA. § 146.121 [Amended] Par. 2. Section 146.121 is amended by: 1. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in the heading to paragraph (i)(1). 2. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(1). 3. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(3)(ii)(A) introductory text. 4. Removing the date “March 9, 2001” and adding in its place “May 8, 2001” in paragraph (i)(3)(ii)(C) Example 2(ii). Dated February 20, 2001. Michael McMullan, Acting Deputy Administrator, Health Care Financing Administration. Approved March 5, 2001. Tommy G. Thompson, Secretary, Health and Human Services. (Filed by the Office of the Federal Register on March 8, 2001, 8:45 a.m., and published in the issue of the Federal Register for March 9, 2001, 66 F.R. 14076) April 16, 2001i2001–16 I.R.B. Revenue rulings and revenue procedures (hereinafter referred to as “rulings”) that have an effect on previous rulings use the following defined terms to de- scribe the effect: Amplified describes a situation where no change is being made in a prior pub- lished position, but the prior position is being extended to apply to a variation of the fact situation set forth therein. Thus, if an earlier ruling held that a principle applied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare with modified, below). Clarified is used in those instances where the language in a prior ruling is being made clear because the language has caused, or may cause, some confu- sion. It is not used where a position in a prior ruling is being changed. Distinguisheddescribes a situation where a ruling mentions a previously published ruling and points out an essen- tial difference between them. Modified is used where the substance of a previously published position is 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 ap- plies to both A and B, the prior ruling is modified because it corrects a published position. (Compare with amplified and clarified, above). Obsoleted describes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rulings that are obsoleted because of changes in law or regulations. A ruling may also be obsoleted because the sub- stance has been included in regulations subsequently adopted. Revoked describes situations where the position in the previously published rul- ing is not correct and the correct position is being stated in the new ruling. Superseded describes a situation where the new ruling does nothing more than restate the substance and situation of a previously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same position published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single ruling a series of situations, names, etc., that were previously published over a pe- riod of time in separate rulings. If the new ruling does more than restate the substance of a prior ruling, a combination of terms is used. For example, modified and superseded describes a situation where the substance of a previously pub- lished ruling is being changed in part and is continued without change in part and it is desired to restate the valid portion of the previously published ruling in a new ruling that is self contained. In this case the previously published ruling is first modified and then, as modified, is super- seded. Supplemented is used in situations in which a list, such as a list of the names of countries, is published in a ruling and that list is expanded by adding further names in subsequent rulings. After the original ruling has been supplemented several times, a new ruling may be pub- lished that includes the list in the original ruling and the additions, and supersedes all prior rulings in the series. Suspended is used in rare situations to show that the previous published rulings will not be applied pending some future action such as the issuance of new or amended regulations, the outcome of cases in litigation, or the outcome of a Service study. Abbreviations The following abbreviations in current use and for- merly used will appear in material published in the Bulletin. A—Individual. Acq.—Acquiescence. B—Individual. BE—Beneficiary. BK—Bank. B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cumulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Cooperative. Ct.D.—Court Decision. CY—County. D—Decedent. DC—Dummy Corporation. DE—Donee. Del. Order—Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. E.O.—Executive Order. ER—Employer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduciary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Foreign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Federal Unemployment Tax Act. FX—Foreign Corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grantee. GP—General Partner. GR—Grantor. IC—Insurance Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—Nonacquiescence. O—Organization. P—Parent Corporation. PHC—Personal Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Partnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Real Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsidiary. S.P.R.—Statements of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Transferee. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpayer. TR—Trust. TT—Trustee. U.S.C.—United States Code. X—Corporation. Y—Corporation. Z—Corporation. Definition of Terms 2001–16 I.R.B.iiApril 16, 2001 Numerical Finding List 1 Bulletins 2001–1 through 2001–15 Announcements: 2001–1, 2001–2 I.R.B. 277 2001–2, 2001–2 I.R.B. 277 2001–3, 2001–2 I.R.B. 278 2001–4, 2001–2 I.R.B. 286 2001–5, 2001–2 I.R.B. 286 2001–6, 2001–3 I.R.B. 357 2001–7, 2001–3 I.R.B. 357 2001–8, 2001–3 I.R.B. 357 2001–9, 2001–3 I.R.B. 357 2001–10, 2001–4 I.R.B. 431 2001–11, 2001–4 I.R.B. 432 2001–12, 2001–6 I.R.B. 526 2001–13, 2001–96 I.R.B. 752 2001–14, 2001–7 I.R.B. 648 2001–15, 2001–8 I.R.B. 715 2001–16, 2001–8 I.R.B. 715 2001–17, 2001–8 I.R.B. 716 2001–18, 2001–10 I.R.B. 791 2001–19, 2001–10 I.R.B. 791 2001–20, 2001–8 I.R.B. 716 2001–21, 2001–9 I.R.B. 752 2001–22, 2001–11 I.R.B. 895 2001–23, 2001–10 I.R.B. 791 2001–24, 2001–10 I.R.B. 793 2001–25, 2001–11 I.R.B. 895 2001–26, 2001–11 I.R.B. 896 2001–27, 2001–11 I.R.B. 897 2001–28, 2001–13 I.R.B. 975 2001–29, 2001–14 I.R.B. 1014 2001–30, 2001–15 I.R.B. 1065 Notices: 2001–1, 2001–2 I.R.B. 261 2001–2, 2001–2 I.R.B. 265 2001–3, 2001–2 I.R.B. 267 2001–4, 2001–2 I.R.B. 267 2001–5, 2001–3 I.R.B. 327 2001–6, 2001–3 I.R.B. 327 2001–7, 2001–4 I.R.B. 374 2001–8, 2001–4 I.R.B. 374 2001–9, 2001–4 I.R.B. 375 2001–10, 2001–5 I.R.B. 459 2001–11, 2001–5 I.R.B. 464 2001–12, 2001–3 I.R.B. 328 2001–13, 2001–6 I.R.B. 514 2001–14, 2001–6 I.R.B. 516 2001–15, 2001–7 I.R.B. 589 2001–16, 2001–9 I.R.B. 730 2001–17, 2001–9 I.R.B. 730 2001–18, 2001–9 I.R.B. 731 2001–19, 2001–10 I.R.B. 784 2001–20, 2001–11 I.R.B. 818 2001–21, 2001–11 I.R.B. 818 2001–22, 2001–12 I.R.B. 911 2001–23, 2001–12 I.R.B. 911 2001–24, 2001–12 I.R.B. 912 2001–25, 2001–13 I.R.B. 941 2001–26, 2001–13 I.R.B. 942 2001–27, 2001–13 I.R.B. 942 2001–28, 2001–13 I.R.B. 944 2001–29, 2001–14 I.R.B. 989 2001–30, 2001–14 I.R.B. 989 Proposed Regulations: LR–230–76, 2001–13 I.R.B. 945 REG–209461–79, 2001–8 I.R.B. 712 REG–246256–96, 2001–8 I.R.B. 713 REG–251701–96, 2001–4 I.R.B. 396 REG–101520–97, 2001–15 I.R.B. 1057 REG–106030–98, 2001–11 I.R.B. 820 REG–106446–98, 2001–13 I.R.B. 945 REG–106542–98, 2001–5 I.R.B. 473 REG–121928–98, 2001–6 I.R.B. 520 REG–109481–99, 2001–13 I.R.B. 961 REG–111835–99, 2001–11 I.R.B. 834 REG–114998–99, 2001–14 I.R.B. 992 REG–115560–99, 2001–14 I.R.B. 993 REG–101739–00, 2001–14 I.R.B. 996 REG–103320–00, 2001–8 I.R.B. 714 REG–104683–00, 2001–4 I.R.B. 407 REG–104876–00, 2001–14 I.R.B. 998 REG–105801–00, 2001–13 I.R.B. 965 REG–106702–00, 2001–4 I.R.B. 424 REG–106791–00, 2001–6 I.R.B. 521 REG–106892–00, 2001–15 I.R.B. 1060 REG–107047–00, 2001–14 I.R.B. 1002 REG–107175–00, 2001–13 I.R.B. 971 REG–107176–00, 2001–4 I.R.B. 428 REG–107186–00, 2001–13 I.R.B. 973 REG–107566–00, 2001–3 I.R.B. 346 REG–110374–00, 2001–12 I.R.B. 915 REG–110659–00, 2001–12 I.R.B. 917 REG–114082–00, 2001–7 I.R.B. 629 REG–114083–00, 2001–7 I.R.B. 630 REG–114084–00, 2001–7 I.R.B. 633 REG–116468–00, 2001–6 I.R.B. 522 REG–119352–00, 2001–6 I.R.B. 525 REG–121109–00, 2001–15 I.R.B. 1064 REG–125237–00, 2001–12 I.R.B. 919 REG–126100–00, 2001–11 I.R.B. 862 REG–129608–00, 2001–14 I.R.B. 1011 REG–130477–00, 2001–11 I.R.B. 865 REG–130481–00, 2001–11 I.R.B. 865 Railroad Retirement Quarterly Rates: 2001–2, I.R.B. 258 2001–15, I.R.B. 1054 Revenue Procedures: 2001–1, 2001–1 I.R.B. 1 2001–2, 2001–1 I.R.B. 79 2001–3, 2001–1 I.R.B. 111 2001–4, 2001–1 I.R.B. 121 2001–5, 2001–1 I.R.B. 164 2001–6, 2001–1 I.R.B. 194 2001–7, 2001–1 I.R.B. 236 2001–8, 2001–1 I.R.B. 239 2001–9, 2001–3 I.R.B. 328 2001–10, 2001–2 I.R.B. 272 2001–11, 2001–2 I.R.B. 275 2001–12, 2001–3 I.R.B. 335 2001–13, 2001–3 I.R.B. 337 2001–14, 2001–3 I.R.B. 343 2001–15, 2001–5 I.R.B. 465 2001–16, 2001–4 I.R.B. 376 2001–17, 2001–7 I.R.B. 589 2001–18, 2001–8 I.R.B. 708 2001–19, 2001–9 I.R.B. 732 2001–20, 2001–9 I.R.B. 738 2001–21, 2001–9 I.R.B. 742 Revenue Procedures—Continued: 2001–22, 2001–9 I.R.B. 745 2001–23, 2001–10 I.R.B. 784 2001–24, 2001–10 I.R.B. 788 2001–25, 2001–12 I.R.B. 913 Revenue Rulings: 2001–1, 2001–9 I.R.B. 726 2001–2, 2001–2 I.R.B. 255 2001–3, 2001–3 I.R.B. 319 2001–4, 2001–3 I.R.B. 295 2001–5, 2001–5 I.R.B. 451 2001–6, 2001–6 I.R.B. 491 2001–7, 2001–7 I.R.B. 541 2001–8, 2001–9 I.R.B. 726 2001–9, 2001–8 I.R.B. 652 2001–10, 2001–10 I.R.B. 755 2001–11, 2001–10 I.R.B. 780 2001–12, 2001–11 I.R.B. 811 2001–13, 2001–12 I.R.B. 898 2001–14, 2001–12 I.R.B. 898 2001–15, 2001–13 I.R.B. 922 2001–16, 2001–13 I.R.B. 936 2001–17, 2001–15 I.R.B. 1052 Treasury Decisions: 8910, 2001–2 I.R.B. 258 8911, 2001–3 I.R.B. 321 8912, 2001–5 I.R.B. 452 8913, 2001–3 I.R.B. 300 8914, 2001–8 I.R.B. 653 8915, 2001–4 I.R.B. 359 8916, 2001–4 I.R.B. 360 8917, 2001–7 I.R.B. 538 8918, 2001–4 I.R.B. 372 8919, 2001–6 I.R.B. 505 8920, 2001–8 I.R.B. 654 8921, 2001–7 I.R.B. 532 8922, 2001–6 I.R.B. 508 8923, 2001–6 I.R.B. 485 8924, 2001–6 I.R.B. 489 8925, 2001–6 I.R.B. 496 8926, 2001–6 I.R.B. 492 8927, 2001–11 I.R.B. 807 8928, 2001–8 I.R.B. 685 8929, 2001–10 I.R.B. 756 8930, 2001–5 I.R.B. 433 8931, 2001–7 I.R.B. 542 8932, 2001–11 I.R.B. 813 8933, 2001–11 I.R.B. 794 8934, 2001–12 I.R.B. 904 8935, 2001–8 I.R.B. 702 8937, 2001–11 I.R.B. 806 8938, 2001–13 I.R.B. 929 8939, 2001–12 I.R.B. 899 8940, 2001–15 I.R.B. 1016 8941, 2001–14 I.R.B. 977 8942, 2001–13 I.R.B. 929 8943, 2001–15 I.R.B. 1054 1 A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2000–27 through 2000–52 is in Internal Revenue Bulletin 2001–1, dated January 2, 2001. April 16, 2001iii2001–16 I.R.B. Finding List of Current Actions on Previously Published Items 1 Bulletins 2001–1 through 2001–15 Announcement: 98–99 Modified by Ann. 2001–9, 2001–3 I.R.B. 357 99–79 Superseded by Ann. 2001–3, 2001–2 I.R.B. 278 2000–78 Obsoleted by T.D. 8933, 2001–11 I.R.B. 794 2000–97 Corrected by Ann. 2001–7, 2001–3 I.R.B. 357 Cumulative Bulletin: 1998–2 Corrected by Ann. 2001–5, 2001–2 I.R.B. 286 Notices: 94–3 Modified by T.D. 8933, 2001–11 I.R.B. 794 98–39 Modified by Notice 2001–9, 2001–4 I.R.B. 375 98–40 Modified by Notice 2001–9, 2001–4 I.R.B. 375 99–53 Modified and superseded by Notice 2001–7, 2001–4 I.R.B. 374 2000–21 Superseded by Notice 2001–1, 2001–2 I.R.B. 261 2000–22 Modified and superseded by Notice 2001–8, 2001–4 I.R.B. 374 2000–26 Modified by Notice 2001–22, 2001–12 I.R.B. 911 2000–43 Extended by Notice 2001–13, 2001–6 I.R.B. 514 Proposed Regulations: EE–130–86 Partially withdrawn by REG–209461–79, 2001–8 I.R.B. 712 REG–106030–98 Corrected by Ann. 2001–30, 2001–15 I.R.B. 1065 REG–106542–98 Corrected by Ann. 2001–24, 2001–13 I.R.B. 793 Proposed Regulations—Continued: REG–116733–98 Withdrawn by Ann. 2001–11, 2001–4 I.R.B. 432 REG–116048–99 Withdrawn by Ann. 2001–27, 2001–11 I.R.B. 897 REG–106702–00 Corrected by Ann. 2001–28, 2001–13 I.R.B. 975 Revenue Procedures: 83–87 Superseded by Rev. Proc. 2001–15, 2001–5 I.R.B. 465 90–18 Amplified and superseded by Rev. Proc. 2001–18, 2001–8 I.R.B. 708 92–19 Superseded by Rev. Proc. 2001–15, 2001–5 I.R.B. 465 96–15 Modified by Ann. 2001–22, 2001–11 I.R.B. 895 96–17 Modified by Rev. Proc. 2001–9, 2001–3 I.R.B. 328 99–18 Modified and superseded by Rev. Proc. 2001–21, 2001–9 I.R.B. 742 99–47 Superseded by Rev. Proc. 2001–16, 2001–4 I.R.B. 376 99–49 Modified and amplified by Notice 2001–23, 2001–12 I.R.B. 911 Rev. Proc. 2001–10, 2001–2 I.R.B. 272 Rev. Proc. 2001–23, 2001–10 I.R.B. 784 Rev. Proc. 2001–24, 2001–10 I.R.B. 788 Rev. Proc. 2001–25, 2001–12 I.R.B. 913 Rev. Rul. 2001–8, 2001–9 I.R.B. 762 2000–1 Superseded by Rev. Proc. 2001–1, 2001–1 I.R.B. 1 2000–2 Superseded by Rev. Proc. 2001–2, 2001–1 I.R.B. 79 2000–3 Superseded by Rev. Proc. 2001–3, 2001–1 I.R.B. 111 2000–4 Superseded by Rev. Proc. 2001–4, 2001–1 I.R.B. 121 2000–5 Superseded by Rev. Proc. 2001–5, 2001–1 I.R.B. 164 2000–6 Superseded by Rev. Proc. 2001–6, 2001–1 I.R.B. 194 Revenue Procedures—Continued: 2000–7 Superseded by Rev. Proc. 2001–7, 2001–1 I.R.B. 236 2000–8 Superseded by Rev. Proc. 2001–8, 2001–1 I.R.B. 239 2000–16 Modified and superseded by Rev. Proc. 2001–17, 2001–7 I.R.B. 589 2000–22 Modified and superseded by Rev. Proc. 2001–10, 2001–2 I.R.B. 272 2001–3 Corrected by Ann. 2001–25, 2001–11 I.R.B. 895 2001–13 Clarified by Notice 2001–12, 2001–3 I.R.B. 328 Revenue Rulings: 64–328 Modified by Notice 2001–10, 2001–5 I.R.B. 459 66–110 Modified by Notice 2001–10, 2001–5 I.R.B. 459 85–30 Clarified by Rev. Rul. 2001–8, 2001–9 I.R.B. 762 88–95 Clarified by Rev. Rul. 2001–8, 2001–9 I.R.B. 762 92–19 Supplemented in part by Rev. Rul. 2001–11, 2001–10 I.R.B. 780 2000–56 Corrected by Ann. 2001–19, 2001–10 I.R.B. 791 2001–4 Modified by Notice 2001–23, 2001–12 I.R.B. 911 Treasury Decisions: 7530 Removed by T.D. 8938, 2001–13 I.R.B. 929 8757 Revised by T.D. 8941, 2001–14 I.R.B. 977 8889 Corrected by Ann. 2001–14, 2001–2 I.R.B. 286 8913 Corrected by Ann. 2001–26, 2001–11 I.R.B. 896 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2000–27 through 2000–52 is in Internal Revenue Bulletin 2001–1, dated January 2, 2001. INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue Bulletin is sold on a yearly subscription basis by the Superintendent of Documents. Current subscribers are notified by the Superintendent of Documents when their subscriptions must be renewed. CUMULATIVE BULLETINS The contents of this weekly Bulletin are consolidated semiannually into a permanent, indexed, Cumulative Bulletin. These are sold on a single copy basis and are not included as part of the subscription to the Internal Revenue Bulletin. Subscribers to the week- ly Bulletin are notified when copies of the Cumulative Bulletin are available. Certain issues of Cumulative Bulletins are out of print and are not available. Persons desiring available Cumulative Bulletins, which are listed on the reverse, may purchase them from the Superintendent of Documents. ACCESS THE INTERNAL REVENUE BULLETIN ON THE INTERNET You may view the Internal Revenue Bulletin on the Internet at www.irs.gov. Select Tax Info for Business at the bottom of the page. Then select Internal Revenue Bulletins. INTERNAL REVENUE BULLETINS ON CD–ROM Internal Revenue Bulletins are available annually as part of Publication 1796 (Tax Products CD–ROM). The CD–ROM can be purchased from National Technical Information Service (NTIS) on the Internet at www.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. HOW TO ORDER Check the publications and/or subscription(s) desired on the reverse, complete the order blank, enclose the proper remittance, detach entire page, and mail to the Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. Please allow two to six weeks, plus mailing time, for delivery. WE WELCOME COMMENTS ABOUT THE INTERNAL REVENUE BULLETIN If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we would be pleased to hear from you. You can e-mail us your suggestions or comments through the IRS Internet Home Page (www.irs.gov) or write to the IRS Bulletin Unit, W:CAR:MP:FP, Washington, DC 20224. 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