II 111th CONGRESS 1st Session S. 996 IN THE SENATE OF THE UNITED STATES May 7, 2009 Mrs. Lincoln (for herself and Mr. Hatch) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend the Internal Revenue Code of 1986 to provide for S corporation reform, and for other purposes.

1.

Short title, reference

(a)

Short Title

This Act may be cited as the S Corporation Modernization Act of 2009. (b)

Amendment of 1986 Code

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Internal Revenue Code of 1986.

2.

Reduced recognition period for built-in gains made permanent

(a)

In general

Paragraph (7) of section 1374(d) (relating to definitions and special rules) is amended to read as follows: (7)

Recognition period

The term recognition period means the 7-year period beginning with the 1st day of the 1st taxable year for which the corporation was an S corporation. For purposes of applying this section to any amount includible in income by reason of distributions to shareholders pursuant to section 593(e), the preceding sentence shall be applied without regard to the duration of the recognition period in effect on the date of such distribution. . (b)

Effective date

The amendment made by this section— (1)shall apply for purposes of determining the recognition period with respect to 1st days referred to in section 1374(d)(7) of the Internal Revenue Code of 1986 occurring before, on, or after January 1, 2009, but (2)shall not apply for purposes of determining the tax imposed by section 1374 of such Code for taxable years ending before such date.

3.

Repeal of excessive passive investment income as a termination event

(a)

In general

Paragraph (3) of section 1362(d) (relating to termination) is amended by adding at the end the following new subparagraph: (D)

Termination

This paragraph shall not apply to taxable years beginning after December 31, 2008. . (b)

Effective Date

The amendment made by this section shall apply to taxable years beginning after December 31, 2008.

4.

Modifications to passive income rules

(a)

Increased Limit

(1)

In general

Paragraph (2) of section 1375(a) (relating to tax imposed when passive investment income of corporation having accumulated earnings and profits exceeds 25 percent of gross receipts) is amended by striking 25 percent and inserting 60 percent. (2)

Conforming amendments

(A)Subparagraph (J) of section 26(b)(2) is amended by striking 25 percent and inserting 60 percent. (B)Clause (i) of section 1375(b)(1)(A) is amended by striking 25 percent and inserting 60 percent. (C)The heading for section 1375 is amended by striking 25 percent and inserting 60 percent. (D)The table of sections for part III of subchapter S of chapter 1 is amended by striking 25 percent in the item relating to section 1375 and inserting 60 percent. (b)

Effective date

The amendments made by this section shall apply to taxable years beginning after December 31, 2008.

5.

Expansion of qualifying beneficiaries of an electing small business trust

(a)

No Look Through for Eligibility Purposes

Clause (v) of section 1361(c)(2)(B) (relating to treatment as shareholders) is amended by adding at the end the following new sentence: This clause shall not apply for purposes of subsection (b)(1)(C).. (b)

Effective date

The amendment made by this section shall take effect on January 1, 2009.

6.

Expansion of S corporation eligible shareholders to include IRAs

(a)

In General

Clause (vi) of section 1361(c)(2)(A) (relating to certain trusts permitted as shareholders) is amended to read as follows: (vi)A trust which constitutes an individual retirement account under section 408(a), including one designated as a Roth IRA under section 408A. . (b)

Sale of Stock in IRA Relating to S Corporation Election Exempt From Prohibited Transaction Rules

Paragraph (16) of section 4975(d) (relating to exemptions) is amended to read as follows: (16)a sale of stock held by a trust which constitutes an individual retirement account under section 408(a) to the individual for whose benefit such account is established if— (A)such sale is pursuant to an election under section 1362(a) by the issuer of such stock, (B)such sale is for fair market value at the time of sale (as established by an independent appraiser) and the terms of the sale are otherwise at least as favorable to such trust as the terms that would apply on a sale to an unrelated party, (C)such trust does not pay any commissions, costs, or other expenses in connection with the sale, and (D)the stock is sold in a single transaction for cash not later than 120 days after the S corporation election is made. . (c)

Effective Date

The amendments made by this section shall take effect on January 1, 2009.

7.

Allowance of deduction for charitable contributions for electing small business trusts

(a)

In general

Section 641(c)(2)(C) (relating to modifications) is amended by adding at the end the following new sentence: The deduction for charitable contributions allowed under clause (i) shall be determined without regard to section 642(c), and the limitations imposed by section 170(b)(1) on the amount of the deduction shall be applied to the electing small business trust as if it were an individual.. (b)

Effective date

The amendment made by this section shall apply to taxable years beginning after December 31, 2008.

8.

Permanent rule regarding basis adjustment to stock of S corporations making charitable contributions of property

(a)

In general

Section 1367(a)(2) (relating to decreases in basis) is amended by striking the last sentence. (b)

Effective date

The amendment made by this section shall apply to contributions made in taxable years beginning after December 31, 2008.